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Chan Wing-siu And Others v The Queen

Judgment Cited authorities 9 Cited in Precedent Map Related
Vincent
Judgment Date08 April 1982
Subject MatterCriminal Appeal
Judgement NumberCACC540/1981
CourtCourt of Appeal (Hong Kong)
CACC000540/1981 CHAN WING-SIU AND OTHERS v. THE QUEEN

CACC000540/1981

Headnote: munder: contemplation that a knife "might be used" sufficient for guilt: no direct English Authority: Johns v. The Queen [1980] 54 A.L.J.R. 166 adopted

IN THE COURT OF APPEAL 1981, No. 540
(Criminal)

BETWEEN
CHAN Wing-siu Appellants
WONG Kin-shing
TSE Wai-ming

AND
THE QUEEN Respondent

_________

Coram: McMullin, V.-P., Li and Silke, JJ.A.

Date: 8 April 1982

___________

JUDGMENT

___________

McMullin, V.-P. :

1. The deceased, CHEUNG Man-kam, lived with his wife, LAM Pui-yin, in a flat on the 1st floor of No. 78, Block A, Lok Shan Road, Tokwawan.

2. Some time between 1.00 p.m. and 2.00 p.m. on the 31st of May 1980, in answer to a ring upon the doorbell, Madam Lam opened the door. Three men rushed in and almost at once attacked her husband who was in the kitchen of the premises. One of the number inflicted upon him a number of serious wounds from which he died a short time afterwards. Madam Lam herself received a slight head injury inflicted with a knife. The three men then left the flat and ran away leaving behind three knives two of which were heavily bloodstained with blood of the same group as that of the deceased. The third knife showed some spots of blood, too small for grouping. That was the story as told by Madam Lam.

3. It was never in dispute that the three appellants were the three men who were involved in this affair.

4. The prosecution case rested upon the testimony of Madam Lam. It appears that with her husband's consent, she was carrying on the trade of a prostitute at those premises and that she regularly placed advertisements, suitably worded, in several Chinese newspapers to indicate the availability of her services.

5. She told the court that when she heard the doorbell ring on this occasion, she peered through the spyhole and observed a man outside and assumed that he was a prospective customer. She said that as soon as she opened the door, two other men suddenly dashed from around a corner nearby and all three made to enter the flat. She endeavoured to close the door but was thrust aside and one of the men stayed with her near the door, told her to kneel down and kept guard upon her while the other two rushed towards the kitchen to which her husband had discreetly withdrawn assuming, as she had done, that a customer was in the offing.

6. At thirty-five minutes past two on the same day, the second appellant presented himself at the casualty department of Queen Elizabeth Hospital. He was found to have a number of serious injuries including a 2½ inch wound in the left side of his face involving the left side of the nose and penetrating the oral cavity. There was a compound fracture of his hard palate. He also had a wound on the left shoulder involving a chipped fracture of the scapula. There were two superficial cut wounds on his right flank. These wounds were all treated on the spot. He was given analgesics and antibiotics and he was discharged on the 2nd of June.

7. Some fifteen minutes after the second appellant had been admitted to casualty, Madam Lam attended the same department and was treated for a 1 inch wound over the left parietal region and bruising over the forehead.

8. Some five minutes later the first appellant turned up at casualty where upon examination, he was found to have a wound over the right parietal region and a linear fracture of the centre table of the skull. These wounds were also treated and he, too, was discharged on the 2nd of June.

9. While she was being attended to, Madam Lam saw the first appellant when he arrived for treatment and she pointed to him and said "That's him. He robbed me.". Her evidence was that the first appellant, on hearing this, did not reply but simply bent down his head.

10. The first and second appellants made statements to the police while still in hospital in which they gave false accounts of how they had come by their wounds. Subsequently, they each made a number of statements admitting to having entered Madam Lam's flat on the 31st of May and to having received their injuries in a confrontation with the deceased.

11. The third appellant was not arrested until some three months later. By this time the statements of the other appellants were in the hands of the police and he was shown their statements. He, too, made several statements relating to the charges of murder and wounding which are subject matter of the indictment in this case.

12. None of the three appellants gave evidence in court but the several statements made by them were introduced in evidence by the prosecution and they constituted the only defence put before the court on their behalf.

13. All three maintained that they had gone to Madam Lam's premises on that day to collect a debt which was allegedly owing from her husband to the third appellant.

14. The first appellant, Chan, said that Tse, the third appellant, whom he had not known previously, had been introduced to him earlier in the day by his friend Wong, the second appellant. Tse asked him and Wong to help him collect the debt from the deceased. He said that he had supplied each of them with a knife taken from his own premises and that each of them had concealed his knife in his clothing, their purpose being to protect themselves against any violence that might be offered to them.

15. He went on to say that they went together to Tokwawan in a public light bus and alighted in an area not familiar to him. Tse, he said, was consulting a newspaper. After some time he led them to the flat on the 1st floor of No. 78. Tse pressed the doorbell and a woman answered the door. Tse went into the flat first and he, Chan, followed closely after. But as soon as he got inside, he was struck on the forehead by a hard object and he fell down. He found that he was bleeding from the head and he tried to take his knife from its place of concealment in his sock but was unable to do so because the light was so dim that he could not see who had hit him. He heard a woman cry "No, don't" and there was a sound of violent fighting. He himself was only concerned to get away and as soon as the door was opened, he rushed downstairs and ran for about half an hour until he caught a taxi which took him to the hospital.

16. Subsequently, when he was charged with the murder of CHEUNG Man-kam and with the wounding of Madam Lam, he made a brief statement in answer to each charge. These were to the same general effect as the earlier statements.

17. The second appellant, Wong, in his statement, made on the 1st of June, said that his friend, Tse, had come to seek his help to pursue a debt which was owed to him by a man in Tokwawan. At that time he, Wong, was chatting with the first appellant, Chan, near the latter's premises in Tung Lo Building in Tai Po Road. He said that they went together in a public light bus until they got to the Chung Kiu Emporium Company where they stopped and Tse purchased three fruit knives and gave him and Chan one each, retaining one for himself. The knives were concealed within their clothing in various ways.

18. Thereafter they boarded another bus and were led by Tse to the flat on the 1st floor of No. 78. Tse rang the bell and the door was opened. Tse and Chan entered first. He followed. The woman, who opened the door, shouted "Robbery" and locked the door behind him. A man, whom he saw within holding a chopper, then chopped him on his face once. He then turned to run away but could not open the door. He was then chopped again on the shoulder and on the back near the waist. A fourth blow was aimed at his head but he warded it off with his hand. Then he took out his knife and stabbed his assailant many times and then turned around and ran. The woman at the door was shouting "Robbery" but Tse pushed her away, opened the door and ran out, followed closely by Chan. Then he himself threw down his knife and followed them. He took a taxi to get to the hospital.

19. In answer to the formal charge of murder, he said that he had struck the deceased in self defence. In answer to the charge of unlawful wounding, he denied that he had injured the woman.

20. The third appellant, Tse, in his statement, made upon the 1st of September 1980, said that he had gone with the other two to collect a debt owed to him by the deceased whom he referred to as Fai Lo. He said that, on entering, Fai Lo was seen holding two knives aiming to chop them. He ran to one side and his two friends were chopped and injured by Fai Lo immediately. He saw Wong produce a knife to retaliate but he himself ran to the door and opened it and ran off. He did not know what occurred thereafter.

21. In answer to the formal charge of murder, he said that he did not know that his friends were armed with knives. He himself had only gone there to collect a debt. He was not clear what had happened after he had opened the door and run away.

22. In answer to the formal charge of wounding, he said that he had seen nothing clearly and that he had heard a sound of fighting. Immediately thereafter, he had opened the door and left and did not know the condition inside the premises. He was the first to leave the premises.

23. Madam Lam was unable to identify the person who had struck her on the head. The judge pointed out to the jury, however, that in view of the absence of any injury upon the third appellant, Tse, and in view of the fact that the knife found near the door had spots of blood upon it, the jury might, if they were prepared to accept Madam Lam's story as substantially true, infer that these facts pointed to the third appellant as the person who had stayed guarding her while the other two went to attack...

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