Cheung Kam Yin And Others v The Queen

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.652 OF 1967

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JUDGMENT

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1. By a majority verdict of 5-2, the appellants, who had been charged with murder, were convicted of the manslaughter of Lee On, who died on Monday, the 26th June, 1967, at 5.45 p.m., for which they were sentenced to 8 years, 6 years and 6 years imprisonment respectively.

2. The prosecution evidence showed that Lee On and another Wong Yuk Sum, were arrested at about 5 p.m. on Saturday the 24th June, 1967 at Shaw Studios, where Lee was said to have been in possession of an inflamatory poster. The arrest was made by officers attached to the Wong Tai Sin Police Station. On Sunday, the 25th, at 2 a.m. Lee was taken for a brief medical examination to Queen Elizabeth Hospital. Otherwise he, and Wong, remained in custody at the Wong Tai Sin Police Station until they were taken to the cells of the North Kowloon Magistracy on the afternoon of Monday the 26th to appear before the Magistrate. They left Wong Tai Sin at about 1.55 p.m. and arrived at the Magistracy between 2.10 and 2.20 p.m. There they were handed over to the custody of the three appellants, a police corporal and two police constables, who were on duty at the detention cells at the Magistracy and whose duty it was to take charge of them and produce them before the Magistrate, Mr. Stratton. When Lee and Wong did appear between 2.30 and 3 p.m. before Mr. Stratton the latter thought that they appeared to be ill and ordered that they should be remanded at once in hospital custody. Lee was removed in an ambulance at about 4 p.m. and died in the hospital at 5.45 p.m. that day. A post-mortem was conducted the following afternoon by the Government Pathologist, Dr. Pang, who diagnosed the cause of death as a ruptured kidney. He also testified that he found two sets of injuries on the deceased's body, namely a set of 13 bruises which from their appearance and colour he concluded had been inflicted between 24 and 48 hours prior to death, and a set ...(illegible) in certain ribs and in the breast bone and a laceration on the anterior wall of the stomach. He estimated that the fatal injury had been inflicted within a period which at first he described as within 4 hours of death, but in cross-examination extended to 4 1/2 hours, and eventually but reluctantly to 5 hours. Dr. Tsui, the doctor who had examined the deceased in the early hours of the Sunday morning, gave evidence that at that time only two bruises, fresh bruises were apparent on the body of the deceased. Police officer witnesses from the Wong Tai Sin Police Station gave evidence that when they took the deceased from Wong Tai Sin on the Monday and handed him into the custody of the appellants at the North Kowloon Magistracy they saw nothing wrong with him. There was in addition evidence from Yam Cheong who had been one of some thirty or forty prisoners confined in two large adjoining cells in the Magistracy building that he had seen the three appellants jointly assaulting the deceased and the other prisoner Wong in the corridor outside the cells. The evidence also showed that the three appellants were the officers exclusively responsible for the safe custody of prisoners in the cells at North Kowloon Magistracy on the afternoon of the 26th. On the other hand it is evident that any occurrence in the corridor outside the cells must have been in the view of the thirty or forty prisoners then occupying those cells, or of the majority of them, and in the view also of a police constable, P.C.337, who occupied the police duty room commanding a full view of the whole length of the corridor. P.C.337 said that he saw no assault committed, and Yam Cheong was the only one of the thirty or forty cells prisoners to give evidence. Wong was negative in his evidence. He said that he remembered being in the cell corridor and that he felt frightened and in pain; he remembered that he fainted before going up the stairs from the corridor to the court and coming down again. Otherwise, he said, he remembered nothing of the time he was in the cell corridor with the deceased.

3. The evidence on which the prosecution relied for a conviction can be divided into three parts: the medical testimony of Dr. Pang as indicating the time when the fatal injury was inflicted on the deceased; the testimony of Yam Cheong showing that all three appellants participated in a joint assault which could have inflicted the fatal injury; and the evidence of the Wong Tai Sin police officers as showing the condition in which the deceased was deliver to the custody of the three appellants at North Kowloon.

4. The evidence on which the prosecution relied for a conviction can be divided into three parts: the medical testimony of Dr. Pang as indicating the time when the fatal injury was inflicted on the deceased; the testimony of Yam Cheong showing that all three appellants participated in a joint assault which could have inflicted the fatal injury; and the evidence of the Wong Tai Sin police officers as showing the condition in which the deceased was deliver to the custody of the three appellants at North Kowloon.

5. The appellants did not themselves give evidence and the only witness called for the defence was Professor Ong, Professor of Surgery at Hong Kong University, who gave evidence which in certain respects directly conflicted with that of Dr. Pang.

6. In the court below the defence contended:-

7. On appeal, counsel for the appellants have continued to urge these contentions, but, in addition, have claimed that the manner in which the case was put to the jury by the judge was, for a number of reasons, unfair to the defence.

8. They argued that in respect of each category of evidence - the medical evidence the evidence of Yam and the evidence from the Wong Tai Sin witnesses - the case for the defence was not put or was inadequately put to the jury by the judge. The judge, they said, put the case for the defence negatively and vaguely when he spoke merely of reliance on the possibility that the fatal injury had been inflicted by someone else; he never put clearly and positively to the jury the defence suggestion that the presence of the earlier bruises pointed strongly to the possibility that the later injuries and the fatal injury had been inflicted at Wong Tai Sin, where there were both opportunity and motive.

9. Moreover, counsel claimed, the summing-up as a whole was one sided and heavily weighted against the defence particularly in that, where there was evidence helpful to the defence contentions, although such evidence was, in most instances though not in all, mentioned in the summing-up, even if only briefly, the significance and import of the evidence was never brought home to the jury whereas the significance of the evidence supporting the case for the prosecution was stressed and in some instances over-stated and over-stressed. In addition, it was claimed, the summing-up revealed a number of misdirections and non-directions, some of them not of major importance in themselves but sufficient in their cumulative effect to produce a miscarriage of justice. The great majority of the passages to which criticism was directed related to the medical evidence, Yam Cheong's evidence and the Wong Tai Sin evidence. In so far as it is necessary, they will be considered in relation to these three matters. The only points to which we would now direct attention are as follows.