New Trial Sought In Massacre Defense Lawyer Argues Jury Given Confusing Instructions

A man convicted of robbery in Washington state’s worst mass murder deserves a new trial because the jury was given confusing instructions, a federal judge was told Thursday.

A King County Superior Court judge failed to make it clear that the jury should acquit Wai Chiu “Tony” Ng if the panel found he was acting under duress, defense lawyer John R. Muenster said.

State assistant attorney general Erin M. Moore, however, argued that Ng, 40, an immigrant from Hong Kong, benefited from an error in his favor at trial, failed to raise U.S. constitutional issues adequately in an appeal to the state Supreme Court and thus should remain in prison.

Voiding the conviction simply because jurors were confused about their instructions “would be initiating a new principle of constitutional law,” Moore said.

U.S. District Judge Barbara Jacobs Rothstein said she would rule later on a recommendation by U.S. Magistrate John L. Weinberg that Ng be released from prison or granted a new trial. Her decision could be appealed by either side.

Ng is serving seven consecutive life prison terms for his role in the Chinatown Massacre, the robbery and killing of 13 people at the Wah Mee gambling club on Feb. 19, 1983.

Kwan Fai “Willie” Mak and Benjamin Ng, no relation to Tony Ng, were convicted of aggravated first-degree murder and robbery. Mak’s death sentence was overturned in 1992, and he is awaiting a new penalty proceeding. Benjamin Ng was sentenced to life in prison without parole.

Testimony showed Tony Ng, a last-minute recruit without a prior criminal record, hog-tied at least some of the victims, took money from them and brandished a .32-caliber revolver but that the shooting was done by Mak and Ben Ng with .22-caliber handguns.

Tony Ng, who fled to Canada after the killings but was arrested in Calgary, Alberta, in October 1984, testified that Mak threatened to kill him, his parents and his girlfriend if he did not participate in the holdup.

Moore argued that prosecutors erred in Tony Ng’s favor when they allowed Judge Charles Johnson to tell jurors that to convict him, they had to find that the state proved beyond a reasonable doubt that he was not acting under duress. Under state law, duress must be proved by the defense according to the preponderance of the evidence.

Nonetheless, because all sides agreed at trial, the higher burden for prosecutors became “case law” that must still be applied in the proceedings, Muenster said.

He said jurors believed Johnson meant for the duress standard to apply only to the murder charge, rather than to the lesser robbery and assault charges.

“The murder instructions were correct and the robbery instructions were wrong,” Muenster said.

He noted that after three days of deliberations, the jury sent Johnson a note asking, “Does the term ‘duress’ apply to all lesser charges?”