Chan Wing-Siu v The Queen
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1984 |
| Date | 1984 |
| Year | 1984 |
| Court | Privy Council |
Crime - Homicide - Intention to kill or cause grievous bodily harm - Entry into flat with knives for common unlawful purpose - Occupant killed and wife wounded - Infliction of serious bodily harm foreseen as possible incident of joint enterprise - Whether sufficient intent to establish murder or grievous bodily harm - Hong Kong - Crime - Mens rea - Unlawful joint enterprise - Contemplation of risk of serious injury being inflicted
The three appellants were each charged with murdering the deceased contrary to common law and wounding his wife with intent to do her grievous bodily harm contrary to section 17(a) of the Offences against the Person Ordinance.F1 The prosecution case was that the appellants went to the deceased's flat armed with knives intending to rob him. When his wife answered the door they rushed in, drew their knives and ordered her to kneel. While the third appellant guarded her the other two appellants forced her husband into the kitchen where he was stabbed. As the appellants left the flat the deceased's wife was slashed across the head. The deceased died from his wounds. Three blood-stained knives were left in the flat. The appellants made statements to the police admitting having gone there that day but claiming their purpose had been to collect a debt owed by the deceased to the third appellant. Only the first and second appellants admitted taking a knife and knowing that the others had knives. The appellants alleged that the deceased had attacked them with a chopper or knives, and the second appellant stated that he stabbed the deceased in self-defence. The appellants did not give evidence, and in relation to all three appellants on both counts the prosecution alleged that crimes of the type charged must have been contemplated by them as possible occurrences in the course of their joint venture. The jury were directed that each appellant was guilty on both counts if proved to have contemplated that a knife might be used on the occasion by one of his co-appellants with the intention of inflicting serious bodily injury. The appellants were each convicted on both charges and appealed. The Court of Appeal upheld the trial judge's direction and dismissed their appeals.
On the appellants' appeals to the Judicial Committee: —
Held, dismissing the appeals, that all those that took part in an unlawful joint enterprise would have the necessary intent to be guilty of murder or grievous bodily harm if they had foreseen that the infliction of serious bodily harm would be a possible incident of the joint enterprise; that the prosecution had to prove beyond reasonable doubt that each of the appellants had contemplated that serious bodily harm would be an incident of their common unlawful purpose; and that, since there was no evidential foundation for the argument that the possible risk of serious injury was so remote that it could be disregarded, there had been a proper and sufficient direction to the jury in the circumstances of the case (post, pp. 682A–C, 684B–D, 685A–B).
Per curiam. In cases where an issue of remoteness does arise it is for the jury (or other tribunal of fact) to decide whether the risk as recognised by the accused was sufficient to make him a party to the crime committed by the principal. No one formula is exclusively preferable and it may be advantageous in a summing up to use more than one. What has to be brought home to the jury is that occasionally a risk may have occurred to an accused's mind but may genuinely have been dismissed by him as altogether negligible, and if they think there is a reasonable possibility that the case is in that class, taking the risk should not make that accused a party to such a crime of intention as murder or wounding with intent to cause grievous bodily harm (post, p. 685C–E).
The following cases are referred to in the judgment of their Lordships:
Davies v. Director of Public Prosecutions[
Johns v. The Queen(
Miller v. The Queen(
Reg. v. Anderson; Reg. v. Morris[
Reg. v. Cunningham[
Reg. v. Gush[
The following additional cases were cited in argument:
Director of Public Prosecutions for Northern Ireland v. Lynch[
Reg. v. Caldwell[
Reg. v. Penfold (David)(
Reg. v. Seymour (Edward)[
Reg. v. Smith (Wesley)[
APPEAL (No. 53 of 1983) by the appellants, Chan Wing-Siu, Wong Kin-Shing and Tse Wai-Ming, with special leave, from a judgment of the Court of Appeal of Hong Kong (McMullin V.P., Li and Silke JJ.A.) given on 8 April 1982 dismissing the appellants' appeals from their convictions on 9 June 1981 before Macdougall J. and a jury on an indictment charging them each with murder, contrary to common law, and wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance.
The facts are stated in the judgment of their Lordships.
Michael Corkery Q.C. and James Guthrie for the appellants.
Harry Ognall Q.C. and Andrew Hodge, Senior Assistant Crown Prosecutor, Hong Kong, for the Crown.
21 June. The judgment of their Lordships was delivered by SIR ROBIN COOKE.
Chan Wing-Siu, Wong Kin-Shing and Tse Wai-Ming were tried jointly in the High Court of Hong Kong before Macdougall J. and a jury on an indictment containing two counts, namely (1) murder contrary to common law, in that on 31 May 1980 at Kowloon they murdered Cheung Man-Kam; (2) wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance (Laws of Hong Kong c. 212) in that on the same occasion they unlawfully and maliciously wounded Lam Pui-Yin with intent to do her grievous bodily harm. She was the wife of the deceased. The jury unanimously found all three accused guilty on both counts. They were sentenced to death for the murder and to five years' imprisonment for the wounding with intent. Appeals against their convictions were dismissed by the Court of Appeal of Hong Kong (McMullin V.P., Li and Silke JJ.A.) in unanimous judgments...
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