HKSAR v. KOO KA CHUN AND ANOTHER

CACC 205/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 205 OF 2006

(ON APPEAL FROM HCCC NO. 318 of 2005)

____________________

____________________

______________________

J U D G M E N T

______________________

Stuart-Moore, VP (giving the judgment of the Court):

1.  On 15 May 2006, the applicants (D1 and D2 respectively) were convicted of the murder of Man Chung-wah (the deceased) following a trial before Mr Recorder Macrae SC and a jury.  They now seek leave to appeal against conviction.

2.  Briefly, the allegation was that the applicants, acting together in a joint enterprise and having armed themselves with long-bladed knives, attacked the deceased with these knives in the early hours of 10 July 2005.

3.  This cowardly attack appears to have been directly related to the refusal by the staff at the New Voice Pub in Tai Wai to serve more alcoholic drinks after the applicants and others in their group had been drinking for many hours.  In the argument which ensued, D2 returned to his home address in order to fetch two very sharp knives.  Subsequent events were largely described by D1 and D2 in interviews with the police following their arrest.

4.  The deceased had worked as a bar attendant at the New Voice Pub for more than two years.  He was described by the proprietor (PW1) as someone who seldom got into trouble with customers.  The deceased was on duty at 10.00 pm on 9 July 2005 when three men and two women came into the pub and sat at table 4.  PW1 had not seen them before and he noticed they consumed a lot of beer.  At about 3.30 am, on 10 July 2005, PW1 went off for some night snacks and returned at about 4.00 am to find the customers from table 4 leaving.  He had not witnessed the argument over the refusal to serve them more drinks.

5.  The waitress (PW2) who served table 4 testified that originally this group of customers had been about ten in number but five were left behind after half of the group left at about 2.00 am.  In her evidence, she described the actions of these five people who were previously unknown to her by reference to letters of the alphabet in order to describe their actions.  Mr A and Mr B were in due course identified as D1 and D2 respectively.  Mr C and Miss D did not feature as witnesses in the trial.  The fifth member of the group, Miss E, was D2’s girlfriend, Chan Hiu-tung, who gave evidence for the defence.

6.  PW2 described how, after PW1 had left the pub, D1 told her to fetch a dozen beers.  She refused and told him they were closing.  This made D1 very angry and a quarrel ensued.  At one stage, the deceased tried to mediate.  When D1 picked up a beer bottle, the deceased snatched it from him.  Eventually, when PW2 closed the pub at about 4.00 am, only D1, Mr C, Miss D and Miss E were still there.  D2 had left after the quarrel.

7.  The prosecution alleged that at the time of the killing, D1 was carrying a 32-centimetre-long pointed knife (exhibit P-1) and D2 was carrying a 40-centimetre-long watermelon knife (exhibit P-2).  The deceased had walked with PW2 from the New Voice Pub, at a time not long after 4.00 am, to the front entrance of a building nearby.  This was next to a 7-Eleven shop.  As PW2 climbed the staircase, she heard the deceased shouting to her to make a telephone call.  She came back downstairs to find out what he meant and suddenly she saw D2 carrying the watermelon knife, exhibit P-2.  Before he attacked the deceased, he accused them of quarrelling with his friends.  He also said: “Don’t make a phone call, don’t make a phone call”.  According to PW2, the deceased was not holding a telephone.

8.  PW2 next saw D2 strike downwards with his right arm and she saw the deceased making a protective gesture with his right arm.  Then D1 suddenly appeared.  He was carrying a similar knife, exhibit P-1.  PW2 ran upstairs to the café where her boyfriend was waiting for her and a telephone call was made to the police.

9.  The deceased was taken to the Prince of Wales Hospital where he was certified dead at 5.53 am.  Dr Poon Wai-ming later conducted a post-mortem.  He found six cut wounds on the deceased’s upper limbs which were consistent with defensive injuries resulting from warding off a sharp instrument.  The fatal blow was a stab wound which measured 4.3 centimetres in width and it penetrated to a depth of 17 centimetres into the abdomen almost completely severing the right external iliac artery.  This, in turn, caused massive bleeding.  Dr Poon found that the injury had been inflicted with a moderate to severe degree of force.  In his opinion, the deceased’s injuries were compatible with having been caused by the pointed knife, exhibit P-1, the blade of which measured 20.5 centimetres.  The injury showed that the sharp side of the blade was facing upwards when the blow was struck.  The remaining cut wounds were caused by either one or both of the knives, exhibit P-1 or P-2.

10.  D1 was arrested in the street at 6.20 pm on 10 July 2005.  He replied: “I just drank too much.  I did not intentionally want him to die.  I only intended to scare him.”

11.  Following this, D1 was interviewed on three occasions.  In essence, he admitted to the police that he had been drinking in the company of a number of others, including ‘Ah Ting’ (D2) at the New Voice Pub.  At some stage his friends were quarrelling “fiercely” with PW2.  He did not know what it was about but the quarrel had nothing to do with the deceased.  At some stage, D2 went missing and he did not know where he had gone.  Later, after he left the pub, he saw PW2 leaving with the deceased.  He asked one of the others he was with where D2 had gone and was told that he had gone home to fetch something.  He guessed that it would be to fetch some offensive weapons but it was “out of his thought” that D2 would bring knives.

12.  Soon afterwards, D1 said that D2 returned with a bag of things but D1 told him that PW2 and the deceased had already left.  D2 replied by saying that they were still at the 7-Eleven shop.  D2 then removed the knives from the bag he was carrying and gave D1 one of them.  D1 then dashed over behind D2 who had found the deceased and D2 began to quarrel with the deceased.  Having only said a few words to the deceased, D2 began to chop the deceased and D1 continued by saying:

“

… After (he) had chopped (him), I arrived. I mean I chased up very fast, in one to two seconds’ time, in one to two seconds’ time. On reaching there, I c-c-chopped also, t-together with him, chopped (him). After that, I probably had chopped him on the side of his left hand, that’s right, (I) probably had chopped him once on (his) l-left arm, and stabbed his belly once. After that, I immediately got onto a taxi.” (Appeal bundle pp.175-176)

13.  When they left the scene, D1 said that ‘Ah Ting’ (D2) took the knives with him and he and other friends all joined up to go back to D2’s address.  Eventually, he went home at about 6.00 am and, later on 10 July 2005, he packed up all the clothes he had been wearing and threw them in a rubbish bin.  However, he kept his sports shoes which were later recovered by the police from his home.  These were found with the bloodstains of the deceased upon them.  D1 identified the knife, exhibit P-1, as the one he had used to attack the deceased.  D1 maintained that he only wanted to wound the deceased and had not thought of killing him.  He denied having sent D2 back to his home address to fetch weapons.

14.  D2 was also arrested on 10 July 2005.  He was intercepted at 7.30 pm by immigration officers as he attempted to leave Hong Kong at the Lok Ma Chau Border Control Point.  When D2 was formally arrested for murder about two hours later, he replied:

“

Ah sir, when (I) had a drink last night, my friend … ‘Koo Chai’ had a quarrel with other people in a pub. Then ‘Koo Chai’ forced me to go home to get some weapons. Next, (we) returned and (he) told me to chop people together. However, I only chopped the opposite party’s hand or arm once with the back of a knife. But ‘Koo Chai’ stabbed the boy’s abdomen with a knife. I was forced in the whole incident.” (Appeal bundle p. 72)

15.  In subsequent interviews, D2 referred to the deceased as “the boss”, having erroneously formed the impression that this was the deceased’s position at the pub.  However, he said that the quarrel in which his group had been involved was not with the deceased but with the waitress (PW2).  In his answers to the police, D2 again referred to D1 as ‘Ah Koo’.  Amongst other things, D2 said as follows:

“	… Then Ah Koo said, ‘Hey, you said last call first, well, can we still order some drinks or not?’ The waitress said no. Ah Koo said, ‘No alcoholic drinks for order, well, what I - I - I - I came here for!’ Then, er, er, kept quarrelling with the waitress. …
	……
	… Kept quarrelling with the waitress, then, er, er, A-Ah Koo, while quarrelling with her, fetched a bottle, … fetched a bottle to t-threaten the opposite party. … Then, the, er, boss of the opposite party c-came out and said to Ah Koo, (he) said to Ah Koo, er, er, ‘Are you - - going to fetch the stuff, Ha, do you want to have a fight?’ Ah Koo said, ‘She threatened me first.’ Then, er, the girl kept on arguing, er, during the q-quarrel … When we w-went out, Ah Koo told me to fetch the stuff.
	……
	… Then Ah - - er, I said to Ah Koo, ‘(You) don’t mean it, do (You)?’ Ah Koo said, ‘Well, will you do it or not?’ Then, I, I said to him, I said, er, ‘Ai.’ I said ‘Ai, Ai’. … I said ‘Ai’ and then I sneaked out. …
	……
	I sneaked out and took a taxi to Jat Min (Estate), er, to fetch the stuff.
	……
	[Police]	Well, you said ‘to fetch the stuff’. What stuff were you going to fetch?
	[D2]	Knives.
	……
	[Police]	Uh-huh. Well, why did he tell you to fetch the stuff? Did he explain it clearly to you?
	[D2]	No, he said that, er, - - can I say coarse language, Sir?
	[Police]	Yes.
	[D2]	That girl, er, said - - er, he said that girl shit. [Police: Yes] He said that girl shit, er, er, and he said she was cocky, so he told me to fetch the stuff.
	[Police]	Uh-huh. Well, what was the purpose of fetching the stuff, do you know?
	[D2]	Er, to hack her.
	[Police]	Do you mean the purpose was to hack that girl?
	[D2]	That’s right. That’s right.” (Appeal bundle pp. 465-469)

16.  D2 went on to describe how he selected two knives from his home.  The watermelon knife, exhibit P-2, came from a drawer in his wardrobe at the side of his bed and the other knife, exhibit P-1, came from the kitchen.  He put them in a plastic bag and returned to the vicinity of the pub where he found D1.  He gave the pointed knife to D1 and kept the watermelon knife for himself as he “did not want to harm anyone”.

17.  He then ran behind D1 to the place where the deceased and PW2 were standing.  D2 gave the following description of the attack:

“	… Ah Koo [D1] was at the back and he used a p-plastic bag wrapping the handle of the knife, wrapping the handle of the knife, then dashed over there, dashed over there. Then, er, er, s-saw the man standing at the stairway, while the girl was standing up above. The man was pressing the buttons of his phone. I ran up to them, er, er, h-h-hacked him with the back of the blade, and I shouted to him, ‘Are you making a phone call?’ That was it. …
	……
	Then, the victim, er, already warded me off with his hand.
	……
	Then, Ah Koo stabbed him with the knife.
	……
	The s-stomach of the male victim.
	……
	Then he stabbed once, and I started to run. I asked Ah Koo to run, but Ah Koo did not until I asked him several times more. Er, when I saw Ah Koo - - the male victim had already gone to the rear staircase.
	……
	[Police]	Well, why did you attack him with the back of the blade instead of attacking him with the blade?
	[D2]	I did not want to harm him.” (Appeal bundle pp. 499-502)

18.  D2 then described how PW2 was either pressing the buttons on her telephone or was making a call.  He said that PW2 had been able to see D1 as well as himself attacking the deceased.  He said that he called several times to D1 to leave and they hurriedly left the scene by taxi.  Later, at D2’s address, D2 spoke about D1 saying that he had “stuck it in and pulled it out and then the blood came gushing out”.  D2 also described his fear of D1.

Defence case

19.  D1 did not give evidence but his case was presented on the basis that, as a result of his state of his drunkenness, he did not have the intent for murder.

20.  D2 gave evidence and called his girlfriend as a witness.

21.  In his evidence, D2 more or less repeated the account he had given to the police.  He said that he had followed D1’s instructions to go home to fetch weapons because D1 was very “fierce” at the time and his mind was a blank.  When he returned to the area where D1 was waiting for him, D2 randomly picked out a knife and gave it to D1 who said: “Give it to me.  Let’s go”.  D2 ran after D1 not knowing why but when he saw D1 pick up a plastic bag and wrap it round the handle of the knife, it crossed his mind that D1 was going to hurt someone.  D2 then said that he ran in front of D1 to warn people to go away and he made a motion with his right hand in which he held the watermelon knife to brush the deceased away with the back of the knife.  He said that the knife did not come into contact with the deceased.  After that, the deceased was stabbed by D1.  He then left the scene with D1 in a taxi.

22.  In cross-examination, D2 agreed with counsel for D1 that he had been given no instructions as to the type of weapons he should bring back with him.  It was, D2 agreed, his own choice to select knives.  He also said that while it had crossed his mind that D1 intended to hurt someone, he did not know who D1 was intending to hurt.

23.  When prosecuting counsel cross-examined D2, he sought an explanation for the fear D2 said that he had for D1. He described several incidents but he agreed that nevertheless he had continued to see D1 and occasionally went drinking with him out of friendship as, of all his friends, D1 knew his [D2’s] family circumstances.  Eventually, he agreed that it had crossed his mind that the reason D1 wanted him to bring weapons was to harm the other party but he said he was not sure if the weapons would be used “to intimidate or to attack”.  If he had refused to fetch the weapons, he would, he said, have been scolded or hit by D1.  When asked by the prosecutor why he had selected two knives, D2 said (contrary to the account he had given to the police) that it was only when he was in the taxi returning to the pub that he realised that there were two knives in the bag.  There came a stage, however, in the cross-examination of D2, when he refused to answer further questions.

24.  D2’s girlfriend testified that she became afraid of D1 on the night in question when he grabbed a beer bottle.  She saw D2 afterwards when he was nervous and scared and she described D2 as having been very drunk that night.  In evidence, she said that D2 had told her that he had tapped the other person once with the flat side of the knife without hurting him.  This was by contrast to the witness statement she gave to the police wherein she had recounted D2 as having told her: “I just hurt his hand”.  D1, she said, was very happy when he told her that he had stabbed someone and had seen blood gushing out.

D1’s grounds of appeal

25.  Mr Mughal, who did not appear in the court below, advanced five grounds of appeal on D1’s behalf, describing this as ‘cut-throat’ defence case.  More precisely, D2’s defence was a cut-throat defence casting all the blame onto D1.  D1 did not give evidence.  His ‘defence’ was more in the nature of putting the prosecution to proof of its case.

26.  Mr Mughal described his 1^st ground of appeal as the “main ground” with the remaining grounds being “linked and supporting”.  Accordingly, we shall deal with all the grounds together which were as follows:

“	1.	The judge failed to use his discretion in giving a warning to the jury as to the dangers of relying on the evidence of [D2] as against [D1].
	2.	The judge erred in not giving any direction or guidance to the jury as to how to approach [D2’s] oral evidence as against [D1] so as to constitute a material omission. (pages 5 and 6 of summing up)
	3.	The judge failed to direct the jury that the motive of [D2] in giving incriminating evidence as against [D1] may well have been to avoid a conviction rather than [to] tell the truth and that the jury had to be cautious when deciding whether or not to accept what [D2] had said about [D1].
	4.	The omission by the judge to give this direction was particularly significant given the fact that after answering some of the prosecution’s questions in cross-examination, [D2] refused to answer further questions about the incident leading to the killing of the victim, thus making the conviction of [D1] unsafe and unsatisfactory (pages 38-40 of summing up).
	5.	In all the circumstances of the case, and having regard to the nature and severity of the attack on [D1’s] statements to the police made by [D2] in his statements and evidence (specifically that [D1] had told [D2] to get the knives used to kill the deceased and that [D1] had instigated the attack on the deceased) the judge should have warned the jury to examine the evidence of [D2] with particular care (pages 33, 34, 35, 36, 37 of summing up and pages 130-183, 198-211, 227-242, 441-571, 585-599 of the appeal bundle).”

27.  Mr Mughal’s point can be made very simply and, to give him credit where it is due, this was precisely what he did.  He asserted that nowhere in the recorder’s summing up were there words which alerted the jury to the need for caution when approaching D2’s evidence against D1.  He submitted that this was particularly important in a case such as this where a co-defendant had refused, part way through his cross-examination, to answer any further questions.

28.  In making his submissions, Mr Mughal relied upon a number of relatively early authorities, the first of which was R v Chan Siu-shing and Ors [1974] HKLR 493.  In that case, it was argued that the judge had failed to warn the jury about the dangers of placing weight on the evidence of three of the co-defendants against the 2^nd appellant.  The Court of Appeal said (at pages 504-505):

“

… Such a warning may be desirable from the point of view of the defendant who is implicated by the evidence, but the judge has to consider the interests of all the parties and the giving of the usual warning might be very prejudicial to the defence of the defendant giving the evidence - and even to the defence as a whole. Therefore the true position is that where a defendant gives evidence unfavourable to his co-defendant the judge has a discretion whether or not to give the usual warning, just as he has where the accomplice called by the prosecution gives evidence which is wholly favourable to the defence … or where it is partly favourable and partly unfavourable …”

29.  The question as to whether D2 had testified against D1 to serve his own interests, aside from being an obvious possibility to any sensible jury, was perfectly properly canvassed by counsel for the prosecution and for D1 in their final speeches.  It would be idle to think that the jury were not alert to the possibility that D2 was merely trying to get himself out of trouble as he heaped the blame onto D1.

30.  In any event, the present approach to the need for a  ‘self-interest’ warning to the jury in cases where a cut-throat defence has been run by a co-defendant is to be found in Law Chung-ki and Anor v HKSAR [2005] 8 HKCFAR 701, the existence of which Mr Mughal was candid enough to say he had not appreciated at the time he prepared his written submissions.  The relevant passages are as follows:

“	‘Cut-throat’ defence direction
	17.	What the jury needs to know about ‘cut-throat’ defences is this.  If there is a reasonable doubt as to whether evidence given in support of a ‘cut-throat’ defence is true or false, such doubt will succeed in exculpating the accused who gave such evidence in his own favour.  But such evidence cannot adversely affect any accused against whom it is given unless the jury feels satisfied beyond reasonable doubt that it is true.  Lawyers understand that.  And perhaps a jury can arrive at that understanding simply upon general directions as to the criminal burden and standard of proof.  But the appropriate course is for the judge to spell it out for the jury.
	18.	It does not matter what words the judge uses as long as he gets the message across.  One way of doing so would be to give a ‘cut-throat’ defence direction along the following lines:
		‘	When an accused enters the witness-box it is usually for the purpose of giving an account simply to the effect that he is innocent.  In other words, it is for the purpose of giving an account exculpatory of himself.  Sometimes, however, an accused’s account is not confined to saying things in his own favour.  And it includes saying things against another or other accused.  He may say that they are guilty or, short of that, he may say something that at least undermines their position in some way.  So it can happen that an accused gives an account that is exculpatory of himself and, at the same time, inculpatory of another or other accused.
			There are cases in which two or more accused enter the witness-box, and each gives an account that is exculpatory of himself and, at the same time, inculpatory of another or other accused.  Lawyers commonly refer to such accounts as ‘cut-throat’ defences.  What a jury must always bear in mind about evidence given in support of a ‘cut-throat’ defence is this.  If the evidence given in support of a ‘cut-throat’ defence leaves the jury with a reasonable doubt as to the guilt of the accused who gave such evidence in his own favour then he must be acquitted.  But such evidence cannot adversely affect any accused against whom it is given unless the jury feels satisfied beyond reasonable doubt that it is true.  All of this is simply a part of the law that if there is any reasonable doubt as to an accused’s guilt, then he must be acquitted.’
	Self-interest warning?
	19.	That, it will be noticed, does not include any warning to the effect that each accused may have been more interested in getting himself acquitted than in telling the truth.  A warning of that kind is among the specimen directions provided by the Judicial Studies Board, and such a warning was given to the jury in the present case.  But the advisability of a self-interest warning is a matter of some controversy. …
	……
	21.	For jury trials in Hong Kong involving ‘cut-throat’ defences, we are of the view that the advantage to an accused of a self-interest warning in respect of his co-accused’s evidence against him is, at least in general, outweighed by the disadvantage to him of an observation from the bench that he, too, may have been more interested in getting himself acquitted than in telling the truth.  Our view is that, at least in general, the judge should not take the initiative of giving the jury a self-interest warning.
	22.	Of course it may happen that what defence counsel have suggested in cross-examination and/or urged in speech may drive the judge to feel that he should say something about self-interest.  Or the judge may feel driven to do that by a question sent to him by the jury.  If the judge feels driven to say something about self-interest, he might do so along the following lines:
		‘	Each accused is presumed innocent unless and until proven beyond reasonable doubt to be guilty.  So the thought that he may have been more interested in getting himself acquitted than in telling the truth should not form any part of your thinking when deciding whether to acquit or convict him.  It is, however, something which you may take into account when deciding whether you feel sure that what he says against a co-accused is true.  All of this, too, is simply a part of the law that if there is any reasonable doubt as to an accused’s guilt, then he must be acquitted.’”

31.  Turning now to the actual directions given by the recorder on this topic, the jury were told:

“

Where a co-defendant goes into the witness-box and gives evidence, it is evidence in the case generally, which you are entitled to consider in the same fair way as any other evidence. However, if you are to rely on the evidence of a co-accused, in this case D2’s evidence in court or any part of his evidence, to the detriment of - that is, against - his co-accused, D1, you must be satisfied so that you are sure of that part you are relying on. I emphasise that where you are considering one defendant’s evidence in court against his co-accused, you must be sure of that part of his evidence before relying upon it to the detriment or disadvantage of his co-accused. The reason for that is the application of that fundamental principle I have already told you about; namely, that before you find a defendant guilty, you must be satisfied so that you are sure about it, and that involves you in being sure of such evidence that goes to prove guilt.

But let me make this clear. When considering D2’s evidence in relation to his own case, you do not have to be sure of it beyond a reasonable doubt. If you are not sure of it but think it just might be true, then it would obviously follow that the prosecution had failed to prove the allegation against him, because you would have a reasonable doubt. Even if you do not believe any of the defendant’s evidence, or his girlfriend’s evidence, that does not mean that the prosecution succeeds, or that he is guilty. As I have said, you must be sure of guilt. Nothing less will do. That principle applies even if you reject the evidence of the defence.” (Appeal bundle p. 6)

32.  It is apparent to us that the recorder had directed the jury in terms which amply described the approach the jury should adopt towards the evidence given by D2 which was adverse to D1.  In this and all other respects, the recorder had directed the jury with infinite care, providing a fair and balanced summing up of the case from every perspective.

33.  There is no merit in D1’s grounds of appeal and his application is dismissed.

D2’s application

34.  On 28 June 2007, when this matter was last before us, D2 applied for an adjournment of the proceedings.  It emerged that two experienced counsel had independently advised that there were no arguable grounds of appeal and that the solicitors, Messrs Ho and Ip, who had been assigned the case by the Director of Legal Aid, had done everything within their power to research the various matters raised by D2 in his instructions to them.

35.  Nevertheless, in view of D2’s insistence that his family had raised a sufficient sum of money to be in a position to brief a lawyer privately and, because of the mandatory sentence of life imprisonment imposed on D2, we felt disposed to grant him an adjournment.  It has since transpired that D2 has been unable to find anyone prepared to advance a ground of appeal on his behalf.  Accordingly, he has put forward his own grounds.  We will briefly deal with these now.

36.  In his first ground, D2 asserted that the recorder gave an insufficient direction as to the approach the jury should take to the effect that alcohol may have had in regard to D2’s intent at the material time.  This assertion is not, however, borne out by the transcript of the summing up where, following earlier discussions between the recorder and trial counsel for D2 on this issue, the recorder directed the jury:

“

It is on this issue of intent, or intention, that I must give you a particular direction concerning the evidence we have heard in this particular case, that each defendant had been drinking a considerable amount of alcohol just prior to the event. The direction I give you is this. You must not convict unless you are sure that the particular defendant under consideration, when he did the act, intended to kill or cause really serious bodily harm, and in deciding whether he intended to kill or cause really serious bodily harm, you must take into account the evidence that he was drunk. If you think that because he was so drunk, he did not intend, or he may not have intended to kill or cause really serious bodily harm, then you must acquit him. But if you are sure that despite his drunkenness, he intended to kill or cause really serious bodily harm, then this part of the case is proved against him. A drunken intent is still an intent.” (Appeal bundle p. 15)

37.  The recorder, shortly afterwards, continued by directing the jury in the following terms:

“

One of the important questions for you to determine is whether you can be sure each defendant had the requisite intent for murder. The issue of drunkenness is clearly relevant to that question. Both defendants, in different language, and in their own language, say they did not intend to kill the deceased. But they also say, you may think, that they did not intend to cause him really serious bodily harm. I shall be referring to the evidence shortly, but to illustrate the point simply for present purposes, D1, when he was arrested, said, as you will recall, ‘Ah Sir, I just drank too much. I did not intentionally want him to die, I only intended to scare him,’ while D2, in his evidence, says that he only wanted to warn the deceased off, or to brush him aside. Of course, you will have to look at all their evidence in context and decide what you, as the jury, make of it, but if you were not sure that each defendant had the necessary intent for murder, whether because he had something else in his mind or because he was drunk, or for whatever reason, then you could not convict of murder.

You would then go on to consider the offence of manslaughter.” (Appeal bundle p. 16)

38.  There is no substance whatever in D2’s first complaint.

39.  In the second of his grounds, D2 suggested that the lady, who was eventually to become the jury’s forewoman, may not have had a good command of English because of her apparent difficulty in reading the oath.

40.  The transcript (at page 717) provides no support for D2’s suggestion and counsel for D2 made no application for the juror in question to be stood by after she had taken the affirmation.  Furthermore, we have listened to the audio-tape recording of the proceedings as the jury were being sworn in and there is nothing to suggest any irregularity.  The juror may have displayed an element of nervousness but this is not to be confused with an inability to follow the proceedings in English.

41.  This ground has no foundation.

42.  The third and last ground suggested that this was “clearly a manslaughter case” because, as D2 expressed it, a person who is under the influence of alcohol “will react differently from a normal person” and that person will behave in an “unreasonable and uncontrollable manner”.  He contended that as the person with whom he had argued was PW2 and not the deceased, this “proved” he had no intention to injure anyone.

43.  As we have indicated already, the directions given by the recorder concerning the effect that alcohol may have upon intent were appropriate.  The suggestion that the wrong person was injured and killed is utterly beside the point.

44.  This ground fails.

45.  Accordingly, D2’s application is dismissed.