( 星 島 日 報 報 道 ) 造 成 兩 死 四 十 多 人 受 傷 的 入 境 處 縱 火 案 , 涉 案 主 腦 施 君 龍 當 年 被 裁 定 縱 火 及 兩 項 謀 殺 罪 成 , 昨 天 高 院 上 訴 庭 三 位 法 官 一 致 裁 定 , 兩 項 謀 殺 控 罪 改 判 為 誤 殺 罪 。 其 中 一 名 法 官 更 指 ﹕ 「 施 君 龍 的 謀 殺 罪 名 根 本 從 一 開 始 就 不 能 成 立 。 」 另 一 位 上 訴 庭 法 官 則 強 烈 批 評 原 審 法 官 高 嘉 樂 於 引 導 陪 審 團 時 犯 錯 , 而 控 方 的 開 案 陳 詞 則 不 清 不 楚 。
上 訴 庭 副 庭 長 司 徒 冕 於 長 達 八 十 頁 判 詞 中 批 評 , 控 方 將 死 者 林 小 星 加 入 謀 殺 罪 名 的 指 控 令 人 困 惑 。 林 本 人 乃 爭 取 居 港 權 的 支 持 者 , 要 證 實 各 被 告 有 謀 殺 他 人 的 意 圖 , 不 但 是 個 壞 主 意 , 亦 大 大 加 重 難 度 。 而 且 當 時 施 根 本 不 在 場 , 要 裁 定 他 謀 殺 罪 成 , 必 須 證 明 他 是 行 兇 者 的 合 謀 。 陪 審 團 卻 裁 定 其 餘 六 名 在 場 被 告 謀 殺 罪 不 成 立 , 那 表 示 即 使 施 確 與 他 們 合 謀 , 最 多 亦 只 能 判 處 誤 殺 罪 。
然 而 原 審 法 官 沒 有 向 陪 審 團 說 明 此 點 , 只 表 示 若 控 方 成 功 證 明 施 「 有 意 圖 」 殺 人 便 可 入 罪 。 司 徒 冕 認 為 , 陪 審 團 基 於 施 在 走 廊 上 向 入 境 處 人 員 所 講 的 恐 嚇 說 話 , 包 括 要 他 們 變 「 燒 豬 」 及 「 明 年 今 日 係 你 們 死 忌 」 等 , 不 難 達 至 他 有 意 圖 殺 人 的 結 論 。
另 一 位 法 官 司 徒 敬 則 表 示 , 單 有 意 圖 並 不 足 夠 , 控 方 於 施 君 龍 不 在 殺 人 現 場 的 情 況 下 , 必 須 證 明 他 對 點 火 行 動 有 作 出 實 際 鼓 勵 及 協 助 才 可 入 謀 殺 罪 。 但 原 審 法 官 引 導 陪 審 團 時 卻 只 表 示 「 重 要 的 是 他 是 否 有 意 圖 並 同 意 點 火 , 他 是 否 首 領 或 組 織 中 的 成 員 並 不 重 要 。 」 司 徒 敬 法 官 指 高 嘉 樂 法 官 不 斷 說 「 有 協 議 」 及 「 一 同 行 事 」 等 字 眼 , 但 甚 至 從 沒 有 清 楚 界 定 何 為 「 一 同 行 事 」 。
司 徒 敬 又 抨 擊 控 方 開 案 陳 詞 並 沒 有 清 楚 指 明 各 被 告 放 火 傷 害 的 對 象 , 到 底 是 他 們 自 己 抑 或 是 入 境 處 人 員 , 結 果 弄 至 好 像 每 個 被 告 全 都 一 早 準 備 到 入 境 處 放 火 。 他 本 主 張 將 案 發 還 重 審 , 惟 遭 另 兩 名 法 官 反 對 。
另 外 , 早 前 因 提 升 了 錄 影 帶 質 素 而 得 以 重 現 人 間 的 說 話 , 包 括 「 沒 必 要 點 火 」 、 「 只 是 拿 覑 ( 天 拿 水 樽 ) 就 好 了 」 及 「 先 不 要 採 取 行 動 」 等 , 原 本 被 視 為 辯 方 翻 案 的 有 力 證 供 , 可 是 昨 日 只 有 司 徒 敬 法 官 認 為 此 點 構 成 翻 案 理 據 。
施 君 龍 昨 聽 罷 判 決 不 禁 展 露 歡 顏 , 到 場 旁 聽 支 持 者 亦 對 判 決 表 示 欣 慰 。 據 悉 , 律 政 司 初 步 接 受 上 訴 庭 的 裁 決 , 不 會 提 出 上 訴 , 因 為 施 君 龍 改 控 的 誤 殺 罪 成 , 亦 會 面 臨 至 少 十 二 年 的 囚 刑 。 案 件 編 號 ﹕ 刑 事 上 訴 九 二 ─ ─ 二 ○ ○ 二 。
2003/6/13
2004-10-19] 入境處縱火案施君龍獲判重審
【本報訊】轟動一時的2000年入境處縱火案,終審法院昨裁定,被判誤殺及縱火罪成立的施君龍和其餘6名被告上訴得直。終審法院以高等法院原審法官錯誤引導陪審團和上訴庭錯誤理解部分法律觀點,將舉證責任放在辯方身上,故撤銷7名被告所有罪名,下令案件發還高等法院,再就兩項誤殺及一項縱火控罪重審。7名被告還押監房看管。
終審法院5名法官昨日一致裁定,在入境處縱火案中的被告施君龍和其餘6人,就2項誤殺和1項縱火罪提出的上訴得直。終審法官包致金在判詞中表示,原審法官高嘉樂在引導陪審團時,向陪審團錯誤指出,他們必須確實肯定控方或辯方的證據,才能加以引用,否則便對該些證據置諸不理,但另方面未有清楚向陪審團表明,即使他們不相信被告的某些證據,亦不能就相關的問題,對被告作出不利裁斷。
誤導對被告裁斷不利
上訴庭曾基於施君龍在原審時被判謀殺罪成,與其餘6人的誤殺罪名不一,改判施君龍誤殺罪名,但終院昨澄清,雖然上訴庭的判決結果正確,但錯誤地認為當罪犯聯合犯案時,如行兇者被裁定誤殺時,其餘同案被告不可能被裁定謀殺罪名,但在法律上,一名的參與者被判謀殺時,真正的行兇者有可能會被判誤殺或較輕罪行。
不過,在是案中控方的案情未能顯示施君龍角色與其他人有何不同,故認為施亦應如同其他被告被判誤殺罪成,故案件將不能就謀殺控罪重審。終院又指出,雖然拍下犯案過程的錄影帶在案件完結後製成DVD,令音質改善,及令一些原審時未能聽到的對話重現,但由於DVD案件將會重審時播放,故終院認為毋須考慮原審是否因缺少部分證據而不公正。
兩誤殺一縱火罪重審
施君龍以及其餘6名被告,在2000年8月2日,前往灣仔入境處大樓,與22名爭取居港權人士示威,其間恐嚇要入境處職員變「燒豬」,揚言「明年今日就是你們的死忌」,後來有人淋天拿水,引起火警,事件引致高級入境主任梁錦光及爭取居港權人士林小星死亡。
施君龍被判謀殺及縱火罪成囚終身,同案彭漢坤、傅模、林興鑾、楊義坪、楊義炎及周洪川則誤殺及縱火罪成,分別入獄12至13年。各人不服,提出上訴,上訴庭改判施君龍誤殺罪名成立,他被判入獄14年,其餘6名被告上訴駁回。他們再向終審法院提出上訴。
FACC Nos 5 & 6 of 2004
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NOS 5 & 6 OF 2004 (CRIMINAL)
(ON APPEAL FROM
CACC NO. 92 OF 2002)
_____________________
Between:
SZE KWAN LUNG
PANG HON KWAN
FU MO
LAM HING LUEN
YEUNG YEE PING
YEUNG YEE YIM
CHAU HUNG CHUEN
|
1st
Appellant
2nd
Appellant
3rd
Appellant
4th
Appellant
5th
Appellant
6th Appellant
7th Appellant
|
- and -
|
HONG KONG SPECIAL
ADMINISTRATIVE REGION
|
Respondent
|
_____________________
Court:
|
Mr Justice Bokhary
PJ, Mr Justice Chan PJ,
Mr Justice
Ribeiro PJ, Mr Justice Litton NPJ and Sir Anthony Mason NPJ
|
Dates of Hearing:
|
4, 5 and 6 October 2004
|
Date of Judgment:
|
18 October 2004
|
J U D G M E N T
|
Mr Justice Bokhary PJ:
Introduction
1. The
result of this appeal turns on a misdirection on the proper approach to defence
evidence in a criminal trial. But having
regard to certain statements in the judgments delivered below, it is also
necessary, lest there otherwise be a misapprehension thereon, to address
certain points on the law of homicide and of joint enterprise.
2. As is
notorious, a fire occurred at Immigration Tower in Wanchai on the afternoon of
2 August 2000. A lot of property was
damaged in that fire. What is far worse,
many persons were injured. Tragically
two of them lost their lives when, nine days later in hospital, they succumbed
to their injuries.
3. What
happened on 2 August 2000 was as follows.
A number of persons originally from the Mainland went to the Immigration
Service’s headquarters at Immigration Tower to press their claims to the right
of abode in Hong Kong. They arrived at
that building between about 12 noon and 2.00 pm. Some arrived alone. Others arrived in batches. All sought ¾
unsuccessfully ¾
to see the then Director of Immigration.
By about 4.30 pm some of the abode claimants had left. But 23 of them remained to continue their
protest. These protesters were all in
Room 1301. From about 4.30 pm onwards
the Immigration Service openly video-recorded events in that room. The Police did the same from about 5.50 p.m.
onwards. What occurred there, including
the outbreak of the fire and its aftermath, is therefore attested not only by
eye-witness accounts and scientific evidence but also by those harrowing
recordings.
4. Some
of the protesters had lighters and bottles containing liquid. Shortly before 6.00 pm members of the
Immigration Service entered Room 1301 to evict the protesters. They began with the 1st
appellant. Although the position is not
entirely clear, it would appear that he was actually outside the room when the
fire broke out almost immediately afterwards.
The 1st appellant is described in his own printed case as “the
most vocal of the protesters”. And the
evidence is that the things which he said to members of the Immigration Service
that afternoon include the following utterances made by him in the corridor
outside Room 1301 between about 5.30 and 5.45 pm:
“Today, next year will be the anniversary of your death.”
“You people are not lucky. Today
you will become roast pig.”
“Ah Sir, it’s you people again.
You people are unlucky, hugging together and die. Today next year will be the anniversary of
the death of you people and I.”
“You people will die for sure.”
There is however no evidence that these utterances
were heard, or even meant to be heard, by the protesters inside Room 1301.
5. As
the 1st appellant was being evicted some of the other protesters
splashed liquid from the bottles which they were holding. Almost immediately a fireball erupted in Room
1301. And one of the protesters, Mr Lam
Siu-sing, was engulfed in flames. He was
one of the persons who died as a result of the fire. The other was a member of the Immigration
Service, Mr Leung Kam-keung, whose death was heroic as well as tragic.
6. After
the fire Room 1301 was examined by forensic scientists who gave evidence to the
following effect. Traces of toluene, a
major constituent in the highly inflammable and volatile liquid commonly called
thinners, were found on several items taken from various parts of the
room. Patches of burning, known as “pool
burns”, were present. The amount of
thinners required to produce these patches ranges from one litre to two litres. Five lighters and seven bottles were found in
Room 1301 after the fire. One of the
bottles was found to contain water.
7. The
irresistible inference upon the whole of the evidence is that the fire broke
out because thinners splashed by one or more of the 23 protesters were ignited
by one or more of them with a lighter or lighters. No one has suggested any other conceivably
reasonable inference.
Charges
8. Charges
were brought against each of the 22 protesters who survived. Seven of them, being the seven appellants now
before us, were each charged (i) with murdering Mr Lam, (ii) with murdering
Mr Leung and (iii) with committing arson.
They were tried before Gall J and a jury. Their trial took place before that of the
other 15 surviving protesters who were tried before Suffiad J and each faced two
counts, namely (i) manslaughter arising out of the death of Mr Leung and
(ii) arson.
9. The
prosecution’s case against the seven protesters who are now appellants before
us ¾
which case was disputed by the defence ¾ was that
the three offences charged had been committed by those seven protesters acting
in the course of a joint enterprise to stage a violent protest by starting a
fire with intent to kill or at least cause really serious injury. Mr Lam and each of the 2nd to 7th
appellants were each holding a bottle.
The 2nd and 3rd appellants each said that he was
aware that his bottle contained thinners.
But the 4th, 5th and 6th appellants
each said that his bottle contained water.
As was their right, the 1st and 7th appellants
chose not to give evidence. They relied
on the evidence given by their co-accused.
Shortly stated the evidence given by the 2nd to 6th
appellants was to the effect that none of the protesters meant to harm
anyone. The most that any of them
admitted was that the protesters wished to make the Immigration Service believe
that they were prepared to set themselves on fire if any attempt was made to
evict them from Room 1301.
10. In
regard to the death of Mr Lam, the prosecution’s case was of course based on
the principle of “transferred malice”.
This is the principle as to which it is said in Archbold Hong Kong
2004 at p.940, para. 16-16 that “[i]t is well established that if a man by
mistake, or, eg by bad aim, causes injury to a person or property other than
the person or property which he intended to attack, he is guilty of a crime of
the same degree as if he had achieved his object”.
Verdicts
11. On
each murder count, the 1st appellant was convicted of murder as
charged while the other six appellants were convicted of the lesser homicide of
manslaughter. All seven appellants were
convicted of arson. Only one of the 15
protesters tried before Suffiad J was convicted of any offence at all, and that
was only of arson. It is suggested on
the appellants’ behalf that the difference between the results of the two
trials can be accounted for at least in part by the availability at the later
trial of a digitally-enhanced recording of what the protesters said before the
outbreak of the fire. This recording
revealed a number of utterances not captured by the analogue sound recording
used at the first trial. These
utterances include:
“Get the lighter, do not ignite …”
“Just hold it will be alright, do not ignite, open the cap, let the
smell spread out of … ”
“We should not take action first, open the cap …”
“Pour it out, do not ignite, let the smell spread out …”
In the Court of Appeal
12. The
Court of Appeal (Stuart-Moore VP and Stock and Yeung JJA) were unanimous
in quashing the 1st appellant’s murder convictions. But they were otherwise divided. On the murder counts, the majority
(consisting of Stuart-Moore VP and Yeung JA) substituted manslaughter
convictions against the 1st appellant. And they affirmed all the other convictions
in which the trial had resulted.
Dissenting, Stock JA was not prepared to substitute or affirm any
conviction. He favoured a retrial of all
the appellants on two counts of manslaughter and one of arson.
13. In
substituting manslaughter convictions against the 1st appellant, the
majority invoked s.83A of the Criminal Procedure Ordinance, Cap. 221, which
reads:
“ (1) This section applies on an appeal against conviction, where the
appellant has been convicted of an offence and the jury could on the indictment
have found him guilty of some other offence, and on the finding of the jury it
appears to the Court of Appeal that the jury must have been satisfied of facts
which proved him guilty of the other offence.
(2) The
Court of Appeal may, instead of allowing or dismissing the appeal, substitute
for the verdict found by the jury a verdict of guilty of the other offence, and
pass such sentence in substitution for the sentence passed at the trial as may
be authorized by law for the other offence, not being a sentence of greater
severity.”
The majority took the view that the jury must have
been satisfied of facts which proved the 1st appellant guilty of
manslaughter under the murder counts.
Further they took the view that, save in regard to murder, the trial
judge’s directions to the jury contained no fatal flaw. And finally they took the view that the
digitally-enhanced recording received as fresh evidence on appeal did not add
materially to the evidence at the trial.
That, shortly stated, is why the majority decided as they did.
14. Why
Stock JA dissented as he did can also be stated with brevity. He felt driven to the conclusion that there
were fatal flaws in Gall J’s directions to the jury on (i) the proper approach
to defence evidence, (ii) the definition of manslaughter and (iii) joint
enterprise. The directions on joint
enterprise which troubled him pertain to the 1st appellant
only. But the other directions which
troubled him pertain to all the appellants.
Additionally, he did not regard any conviction as safe when the jury did
not have the benefit of the digitally-enhanced recording. Having noted all of that, I should mention
that the Court of Appeal were unanimous in acknowledging the great efforts
which Gall J made to give the persons in the dock a fair trial in this far from
easy case. This is a tribute to Gall J
in which I respectfully join.
15. Essentially
each appellant asks us to do as Stock JA favoured doing, although Mr
Gerard McCoy SC for the 1st appellant did not deny himself the
observation that it was open to us to quash his client’s convictions without
ordering a retrial. The respondent asks
us to do as the majority did.
Conviction of a participant for murder
even though the actual killer is not so convicted
16. So
that there be no misapprehension as to the true state of the relevant law, it
is necessary to deal with the reasons which the Court of Appeal gave for
quashing the 1st appellant’s murder convictions.
17. As
Stuart-Moore VP noted, Mr McCoy had submitted to the Court of Appeal “that the
jury’s guilty verdicts on the murder counts against [the 1st
appellant] alone were inconsistent with the prosecution’s case of joint
enterprise and inconsistent with the manslaughter verdicts returned against all
the others with whom [the 1st appellant] was indicted”. Stuart-Moore VP, with whom Yeung JA agreed,
said that Gall J should have told the jury “that if those who played a
principal role in the events were all acquitted of murder, any secondary
parties to the killing would inevitably also have to be acquitted”. And Stuart-Moore VP went on to say that “[t]he
acquittals for murder of the other Appellants meant that [the 1st
appellant’s] participation, in the form of the encouragement he may have lent
by his actions and presence in the room, was limited, at most, to manslaughter
on which all the others were convicted”.
18. Stock
JA shared this line of reasoning, saying that “if the principal actors … did
not intend to kill or cause grievous bodily harm, then those who encouraged or
assisted the principals, whatever intention those secondary participants may
have nursed, could not be guilty of murder”.
19. The
Court of Appeal appears to have misapprehended the basis of the prosecution’s
case and the defence submission in this context. The case was throughout fought on the basis
of the doctrine of joint enterprise.
However, the Court of Appeal’s reasoning was appropriate only to a
conviction based upon the common law principles of accessorial liability
whereby the person charged with aiding, abetting, counselling or procuring an
offence can only be convicted if the principal offender, charged at the same
trial, is found guilty of the relevant principal offence. As further discussed below, a participant in
a joint enterprise can be convicted of murder even though the actual killer is
acquitted outright or convicted of the lesser offence of manslaughter
only.
20. One of
the certified questions before the House of Lords in R v. Howe [1987] 1
AC 417 was: “Can one who incites or procures by duress another to kill or be a
party to a killing be convicted of murder if that other is acquitted by reason
of duress?” Their Lordships were
unanimous in answering this question in the affirmative. Lord Mackay said (at p.458 C-D) that “where a
person has been killed and that result is the result intended by another
participant, the mere fact that the actual killer may be convicted only of the
reduced charge of manslaughter for some reason special to himself does not, in
my opinion in any way, result in a compulsory reduction for the other
participant”.
21. In Osland
v. R (1998) 197 CLR 316 Mrs Osland and her son were jointly charged with
the murder of her husband who was the son’s step-father. The prosecution’s case was that they had
entered into a plan to murder the deceased.
It was not in dispute that Mrs Osland had mixed sedatives into the
deceased’s dinner and that the deceased was killed as the result of a blow
struck by the son in Mrs Osland’s presence while the deceased was asleep. Each accused relied on self-defence and
provocation. The jury convicted
Mrs Osland of murder. But they were
unable to reach a verdict in respect of the son (who was acquitted when tried
again). The High Court of Australia
(McHugh, Kirby and Callinan JJ, Gaudron and Gummow JJ dissenting) held that the
conviction of Mrs Osland for murder was not inconsistent with the jury’s
failure to reach a verdict in respect of the son. At p.344 McHugh J cited the passage from Lord
Mackay’s speech in Howe’s case referred to above, and said:
“This statement is conclusive in England, at all events, in showing
that it is the acts, and not the crime, of the actual perpetrator which are
attributed to the person acting in concert.
If the latter person has the relevant mens rea, he or she is guilty of
the principal offence because the actus reus is attributed to him or her by
reason of the agreement and presence at the scene. It is irrelevant that the actual perpetrator
cannot be convicted of that crime because he or she has a defence such as lack
of mens rea, self-defence, provocation, duress or insanity.”
22. In Hui
Chi Ming v. R [1992] 1 AC 34, an appeal from Hong Kong, the Privy Council
held that it was not an abuse of process to prosecute the appellant for murder
as a participant in a joint enterprise even though the actual killer had
earlier been convicted of manslaughter only.
23. So the
Court of Appeal gave the wrong reason for the course which they took of
quashing the 1st appellant’s murder convictions and refraining from
ordering his retrial for murder. But
there does exist a good reason for taking that course. This is that, approaching the case on the
joint enterprise basis as presented by the prosecution and having regard to the
absence of any relevant distinction between the 1st appellant’s
position and that of his co-accused, his convictions for murder were
inconsistent with their convictions for manslaughter only. Quite rightly, the respondent has never
sought the reinstatement of the 1st appellant’s murder convictions
or his retrial for murder.
The proper approach to defence evidence
24. Dealing
with the position when an accused gives evidence, Gall J told the jury:
“What he is doing is providing you with information which, when you
look at it and then look at the prosecution evidence, without comparing them
but looking at what you are sure is true, might assist you in finding
doubts in the prosecution’s case.”
(Emphasis supplied.)
25. Stuart-Moore
VP said this of that direction:
“ I have considerable doubt that
a jury, hearing the passage about which particular complaint is made, would
have understood what the judge was saying.
If they did so, I think it is just as likely, if not more so, that the
impression created in their minds would have been that the jury could look at
the defence evidence as information which might assist them in finding doubts in
the prosecution’s case when looking at what they were sure was true in the case
presented by the prosecution.”
26. The
jury were being directed on how to approach defence evidence. It was crucial that they receive a clear and
accurate direction thereon. Even if I
shared Stuart-Moore VP’s view as to what the jury would have made of the
direction given to them ¾ which I do not ¾ the true
effect of what he says must be that there was non-direction on the proper
approach to defence evidence. As it
happens however, it is plain that, as Stock JA thought, there was positive
misdirection on this matter. Such
misdirection is not confined to the passage quoted above. As Stock JA said, “in directing the jury as
to its analytical task, the judge regularly exhorted the jury to reach its
verdict based on such evidence as was established to be true, an analytical
method to be adopted equally to defence evidence as to evidence adduced by the
prosecutor”. Stock JA demonstrated, by
referring to the transcript, that Gall J had indeed so exhorted the jury.
27. In
truth what Gall J told this jury is substantially the same as what he told the
jury in HKSAR v. Wong Wai Man (No. 2) [2003] 4 HKC 517 when he said (as one
sees at p.523A): “Any evidence from either the prosecution witnesses or the
accused or the defence witnesses which you are not sure is true, you disregard
for all purposes”. This, as Ma CJHC said
at p.523G when giving the judgment of the Court of Appeal (consisting of
himself and, as coincidence would have it, Stuart-Moore VP and Yeung JA), “was
not a proper direction”. The Chief Judge
cited the decision of the High Court of Australia in Liberato v. R
(1985) 159 CLR 507. As to the actual
disposal of that application for special leave, Brennan J (later Brennan CJ)
was in the minority of a 3:2 split. But
this is not to say that the majority disagreed with his statement at p.515 that
“[t]he jury must be told that, even if they do not positively believe the
evidence for the defence, they cannot find an issue against the accused
contrary to that evidence if that evidence gives rise to a reasonable doubt as
to that issue”. Whether by one form of
words or another and whether in one way or another, that message must be
conveyed to the jury.
28. Having
regard to the way in which the prosecution presented its case, the evidence
given by the 2nd to 6th accused was of material
assistance to the 1st and 7th appellants as well as
themselves. On each count, there was
defence evidence on which each appellant could place reliance and in respect of
which each of them was entitled to have the jury receive an accurate direction
on the proper approach to defence evidence.
Contrary to accepted norms, no such direction was given. The jury were misdirected on the matter. And, in the circumstances, none of the
convictions, whether resulting from the jury’s verdicts or from substitution by
the majority in the Court of Appeal, can survive. To avoid substantial and grave injustice, all
the convictions must be quashed.
Definition of Manslaughter
29. It is
therefore unnecessary for the purpose of disposing of this appeal to deal with
the complaint made against the definition of manslaughter which Gall J gave to
the jury. Nor is it necessary to deal
with it for the benefit of the retrial of this case or the trial of other
cases. Gall J had inadvertently omitted
to include the element of danger when stating the elements of unlawful and dangerous
act manslaughter. And the only question
is whether that mattered having regard to his direction to the jury, repeated
in respect of each accused, that they could not convict any accused of any
homicide unless he had poured and lit thinners or had been party to an
agreement to do so.
30. Mr
McCoy urges us to embark upon the question of whether unlawful and dangerous
act manslaughter should no longer be understood in the sense explained by the
House of Lords in DPP v. Newbury [1977] AC 500 (applying the decisions
of the Court of Criminal Appeal in R v. Larkin (1942) 29 Cr. App. R. 18
and R v. Church [1966] 1 QB 59) but should now be understood instead in
the sense explained by the majority in the High Court of Australia in Wilson
v. R (1992) 174 CLR 313.
31. The Newbury
approach requires that the unlawful act was one which all sober and reasonable
people will inevitably realise must subject the victim to at least the risk of
some harm, albeit not serious harm. This
is to be contrasted with the Wilson approach which requires that the
accused realised that the unlawful act exposed the victim to an appreciable
risk of serious injury. While there is
something to be said for acceding to Mr McCoy’s invitation, it has to be
borne in mind that judicial decisions on important issues are best made in the
context of facts giving rise to a need to resolve them for the purposes of the
case at hand. And in this case as in
many others, I doubt if the result would differ depending on whether one
proceeds on the Newbury approach or the Wilson approach. So I would postpone embarking upon this
question at least until confronted with a case in which the difference between
the two approaches is crucial to the result.
Joint enterprise
32. By
reason of the fatal misdirection on the proper approach to defence evidence,
the disposal of the present appeal does not require a decision on whether Gall
J’s directions on joint enterprise were correct. But something should be said about joint
enterprise for the benefit of the retrial of the present case and the trial of
other cases.
33. “Joint
enterprise” is an expression used to denote the conduct of two or more persons
who take part together in a course of criminal conduct. So many and varied are the circumstances in
which the doctrine of joint enterprise operates that no single case can be
expected to provide an occasion for discussing every aspect of the
doctrine. One such set of circumstances ¾
by no means uncommon in the experience of our courts ¾ is where
multiple injuries are inflicted on a victim set upon by a group of assailants,
many injuries are inflicted, only one injury proves fatal and the evidence does
not show which assailant inflicted the fatal injury. The circumstances of the present case are
comparable since the prosecution is unable to say which particular person
actually started the fire.
34. While
this is not the occasion for giving a definitive decision on the entirety of
the doctrine of joint enterprise, it is my view, as indicated above, that the
doctrine is distinct from the common law principles of aiding, abetting, counselling
or procuring. Each participant is
criminally liable for all the acts done in pursuance of the joint
enterprise. And whether or not he
intended it, he will be criminally liable for any such act if it was of a type
which he foresaw as a possible incident of the execution of the joint
enterprise and he participated in the joint enterprise with such
foresight. This may be traced at least
as far back as Alderson B’s famous direction to the jury in Macklin and
Murphy’s Case (1838) 2 Lewin 225 at p.226; 168 ER 1136. And it is the effect of our law as it has
been clearly understood at least since the decision of the Privy Council on
appeal from Hong Kong in Chan Wing-siu v. R [1985] AC 168, which
involved murder and wounding with intent.
I have particularly in mind what Sir Robin Cooke (as Lord Cooke of
Thorndon then was) said at pp 175 G-H and 177B in the course of delivering
their Lordships’ advice in that case.
35. After
examining the authorities in Australia and New Zealand as well as in England,
Sir Robin Cooke said this (at pp 177G - 178B):
“ The test of mens rea here is
subjective. It is what the individual
accused in fact contemplated that matters.
As in other cases where the state of a person’s mind has to be
ascertained, this may be inferred from his conduct and any other evidence
throwing light on what he foresaw at the material time, including of course any
explanation that he gives in evidence or in a statement put in evidence by the
prosecution. It is no less elementary
that all questions of weight are for the jury.
The prosecution must prove the necessary contemplation beyond reasonable
doubt, although that may be done by inference as just mentioned. If, at the end of the day and whether as a
result of hearing evidence from the accused or for some other reason, the jury
conclude that there is a reasonable possibility that the accused did not even
contemplate the risk, he is in this type of case not guilty of murder or
wounding with intent to cause serious bodily harm.”
Chan’s case was applied by the
House of Lords in R v. Powell [1999] 1 AC 1.
36. Usually
all the participants are present when the crime is committed. But in Osland’s case McHugh J said at
p.350 that “[w]here the parties are acting as the result of an arrangement or
understanding, there is nothing contrary to the objects of the criminal law in
making the parties liable for each other’s acts and the case for doing so is even
stronger when they are at the scene together.” (Emphasis supplied). That indicates that presence is not
invariably essential. Indeed, as the
High Court of Australia pointed out in McAuliffe v. R (1995) 183 CLR 108
at p.114, their Honours had held in Johns v. R (1980) 143 CLR 108 that
it is not necessary for a party to be present at the scene of a crime to be
acting in pursuance of a common purpose with others who were present. In their joint judgment in Osland’s
case Gaudron and Gummow JJ said (at pp 329-330) that the reasoning in McAuliffe’s
case “would appear not to require presence at the scene of all parties to the
continuing common purpose if the criteria specified in that reasoning otherwise
are satisfied.”
37. In
regard to the 1st appellant, what Gall J said to the jury included this:
“If the 1st accused is to be found guilty of any of the offences on the indictment, it
can only be because he was part of an agreement to commit those offences. You
would have to find firstly that a joint enterprise existed and that at the time
the fire started, he was a party to that agreement and that the actions taken
were in accordance with what he agreed.”
Stock JA regarded that as a “material misdirection”,
saying:
“It cannot be that if this appellant took no physical part and offered
no encouragement and no advice and no instructions, that he is nonetheless
guilty of the substantive offence, whether murder or manslaughter or arson, by
mere reason of some prior agreement.”
It is common to speak of the participants in a joint
enterprise assisting or encouraging each other.
But I respectfully agree with the statement in Smith & Hogan:
Criminal Law, 10th ed. (2002) at p.161 that
“… once a common purpose to commit the offence in question is proved,
there is no need to look further for evidence of assisting and encouraging. The act of combining to commit the offence
satisfies these requirements. Frequently
it will be acts of encouragement which provide the evidence of the common
purpose.”
Just because he had been evicted from Room 1301
immediately before the fire broke out, it does not mean that the 1st
appellant cannot be guilty of manslaughter or arson in the present case. The preponderance of authority is to the
effect that presence is not always necessary for criminal liability under the
doctrine of joint enterprise. And even
if presence were necessary, the 1st appellant can, in all the
circumstances, be regarded as having been present.
Fresh evidence
38. There
is no need to decide whether the fact that the digitally-enhanced recording was
not available at the trial rendered the convictions unsafe. That recording will of course be available at
the retrial.
Retrial
39. It is
plainly appropriate in all the circumstances that each appellant be retried on
two counts of manslaughter and one count of arson. As to the course of the retrial, I would
observe that just because the prosecution did not seek to put forward a case of
manslaughter by gross negligence at the original trial, it does not mean that
they are precluded from doing so at the retrial.
Result
40. I
would allow the appeal, quash all the convictions, order the retrial of all the
appellants on two counts of manslaughter and one count of arson, and remand
them in prison custody pending the retrial.
Mr Justice Chan PJ:
41. I
agree with the judgment of Mr Justice Bokhary PJ.
Mr Justice Ribeiro PJ:
42. I
agree with the judgment of Mr Justice Bokhary PJ.
Mr Justice Litton NPJ:
43. I
agree with the judgment of Mr Justice Bokhary PJ.
Sir Anthony Mason NPJ:
44. I
agree with the judgment of Mr Justice Bokhary PJ.
Mr Justice Bokhary PJ:
45. The
Court unanimously allows the appeal, quashes all the convictions, orders the
retrial of all the appellants on two counts of
manslaughter and one count of arson, and remands them
in prison custody pending the retrial.
(Kemal Bokhary)
|
(Patrick Chan)
|
(R.A.V. Ribeiro)
|
Permanent Judge
|
Permanent Judge
|
Permanent Judge
|
(Henry Litton)
|
(Sir Anthony Mason)
|
Non-Permanent Judge
|
Non-Permanent Judge
|
Mr Gerard McCoy
SC & Mr Raymond J.J. Pierce (instructed by Messrs Knight & Ho and
assigned by the Legal Aid Department) for the 1st appellant
Mr Lawrence Lok
SC & Mr Edwin Choy (instructed by Messrs S.Y. Chu & Co. and assigned by
the Legal Aid Department) for the 2nd – 7th appellants
Mr Arthur Luk SC,
Mr Alain Sham & Miss Anthea Pang (of the Department of Justice) for the respondent
文章日期:2005年7月28日
【明報專訊】2000年發生的入境處縱火案,以施君龍(圖)為首的7 名被告,今年6月在高院承認因嚴重疏忽,誤殺高級入境事務主任梁錦光及爭取居權人士林小星,施君龍被判入獄8 年,但他不服判刑提出上訴。施君龍昨沒有律師代表,親自向上訴庭申請保釋,但即時被拒絕
持單程證 助內地人團聚
縱火案在二○○○年八月發生,一度被判謀殺罪成和終身監禁的施君龍,幾經上訴,及至○五年獲改判誤殺和監禁八年,同年底刑滿出獄返回內地。惟《好報》近日直擊施君龍在屯門的家庭團聚互助會新界分會出入,原來他已成功申請單程證來港定居,並當義工協助內地人來港團聚。現已三十六歲的他身材明顯發胖,駕着豪華七人車、身穿名牌牛仔褲、孭着名牌袋,似已完全融入香港的生活。
事件中殉職的梁錦光,據了解其家人事發後已移居海外生活。本月十一日是梁錦光的十三年死忌,《好報》記者當日在浩園碰到一名手持白玫瑰的女親友,在梁的墓地前致祭,但她不願回應施君龍來港定居的事。
對於施君龍獲發單程證來港,有當年曾與梁錦光共事的入境處人員感到憤慨,認為事件是凸顯單程證制度的荒謬。
入境事務主任協會主席倪錫水昨接受查詢時謂,「有啲傷痛要放低,當然有人唔會忘記」,他又指,當事人是經過本港司法制度獲判罪成和服刑,已對其錯誤行為付了代價,如今是依法申請來港,要尊重機制。
對於曾在本港干犯嚴重刑事罪行之人士,獲批單程證來港,入境處發言人表示有關受理、審批及簽發「單程證」的事宜,都是由內地公安機關按內地法律、政策及行政法規所釐訂。
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