Chan Kwai Kam And Others v The Queen

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.99 OF 1968

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JUDGMENT

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1. The appellant and six other persons were charged with the murder of Yeung Siu Shek on the 15th of September, 1967. He appeals against conviction.

2. The evidence against this appellant was that he instigated a robbery which was committed on 6th August by Ng Shing and Fong Ngor, the appellant being himself in the vicinity at the time of the robbery. The victim of the robbery, Chan Wo Kam, was a clansman of the appellant and the deceased obtained from the appellant part of the proceeds. Chan Wo Kam appears to have discovered who had instigated the robbery and to have been looking for repayment. Chan Wah Ling acted as mediator and on 12th September he called on the deceased to discuss the matter. This visit ended with a fight in which the deceased, with the aid of a neighbour, gave Chan Wah Ling a thrashing. As a result Chan Wah Ling was very angry and the next day there was a meeting of many members of the Chan clan, at which reprisals against the deceased were discussed. The appellant was not present at this meeting but arrived towards the end of the luncheon which followed it. He was reprimanded by one of those present for starting the trouble by instigating the robbery of a clansman and later he said to another member of the clan: "Let two of us go and hit back" and the witness who gave this evidence inferred from the context that the person to be assaulted was the deceased. On the evening of 14th September the appellant was seen wearing a shirt which, after the assault, was found to be blood-stained. On that night the appellant slept in a house (not his own) with three others who have been convicted of the murder of the deceased upon evidence which we have been satisfied was amply sufficient. Early on the morning of 15th September the appellant was present with the same persons in a restaurant and subsequently, at the time of the murder, in the room of the deceased's flat where the assault took place, although the evidence suggests that he took no active part in the assault. The appellant subsequently told a story which was essentially the same as that told by the other three with whom he had spent the night, that they went to see the deceased to ask him for the return of the money he had received from the robbery and that the deceased attacked them. The fact that all the wounds inflicted on the deceased were on the legs doubtless lad the jury to the conclusion that they were inflicted neither in self-defence nor as a result of a sudden quarrel but in the execution of a conspiracy to maim.

3. The main point which has caused us anxiety is whether it was open to a jury on this evidence to convict the appellant of murder or whether the case against him should have been withdrawn by the judge. If as a matter of law there was no case for him to answer the evidence which he subsequently gave did not supply what was wanting. We say at once that on any view the case was one of the strongest suspicion.

4. What the prosecution had to prove was that the appellant, as principal in either the first or second degree, murdered the deceased. This required that they should prove an intention on his part (a) that the deceased should be assaulted and (b) that the deceased should suffer, as a result of the assault, at least grievous bodily harm. We never doubted that there was sufficient evidence of (a): the evidence (which the jury were entitled to believe although it was most strenuously attacked) that he had spoken of going and hitting back, coupled with the evidence of his presence at the time of the assault, could alone justify on another occasion a conviction for assault. On the principle stated in Mawaz Khan v. Ragina⁽¹⁾ the fact (clearly found by the jury) that the appellant and the other persons present at the time of the attack told a common but false story as to what happened on that occasion was indicative of the appellant's guilt. But it is not enough to show that he had a guilty mind and counsel for the appellant did not contend that on this evidence it would be wrong to infer that the appellant went to the deceased's house with intent that the deceased should be assaulted. What he contends is that the mere fact that in the event the assault took the form it did is not evidence from which one could properly infer that the appellant intended it should take that form. It may be put in this way: // a man may be presumed to intend the natural consequences of his own acts, but should he be presumed to intend the natural...