HKSAR v. LAU CHUEN FAT

CACC300/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 300 OF 2004

(ON APPEAL FROM HCCC 281 OF 2003)

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J U D G M E N T

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Hon Tang JA (giving the judgment of the court) :

1. The applicant was tried for murder but was convicted of manslaughter by reason of provocation.  On 14 January 2004 he was sentenced to nine years and six months’ imprisonment.  The judge had adopted 12 years as the starting point but gave the defendant a discount of two and a half years because the defendant had offered to plead guilty to manslaughter by reason of provocation.

2. The judge did not give the defendant a full one-third discount although on arraignment the defendant had offered to plead guilty to manslaughter by reason of provocation.  That is because in the final address to the jury Mr Mughal relied not only on the defence of manslaughter by reason of provocation but also on the defence of manslaughter without intent.  The transcript of the following exchange between counsel and the judge explained how that came about and this is at page 381 of the record :

“COURT : ‘Did you want to kill?’ and then when I, at the end of his evidence, asked him what it is that he did intend, he told us, ‘Nothing’.  Now, that’s not consistent with a plea of provocation.

MR MUGHAL : My Lord, that is what he …

COURT : Manslaughter by provocation.

MR MUGHAL : Yes, my Lord, that is admittedly, my Lord, what he did say in cross-examination but that, my Lord, was not explored any further, save and accept that -- what he had said.  I think he denied, my Lord, that he had any intent as such. ”

3. Now the first answer that he gave in answer to question put to him by counsel for the prosecution in cross-examination could not be regarded as resiling from manslaughter by reason of provocation.  Intent to kill was not required for the offence.  As for the second answer that he gave in answer to the judge’s question, unless the defendant happened also to be a law student, he could hardly be expected to appreciate that the correct answer was that “I intended to cause grievous bodily harm but I had been provoked”.

4. The evidence was not further explored and Mr Mughal had explained why.  He was put into a very awkward position that if he were to seek an adjournment and permission to interview the defendant further that might compromise the defendant’s credibility with the jury.

5. And having regard to the evidence which was elicited in cross-examination and by the judge in his question to the defendant, it seemed to us that counsel and indeed the judge had to deal with the alternative defence of manslaughter without intent.  But looking at the matter as a whole, it is clear from counsel’s address to the jury that the defendant’s main defence was one of provocation.  Mr Mughal has drawn our attention to the transcript of his address to the jury.  It seems that he had spent 13 pages or there were 13 pages of transcript on manslaughter by reason of provocation and only perhaps half a page on manslaughter without intent.  We have also been referred by counsel to the case of HKSAR v. Franciso Reynaldo F. [2000] 4 HKC 37.  This is what Leong JA (as he then was) said at the conclusion of his judgment at page 42 :

“In our view, the applicant had indicated from the outset that he was prepared to plead to manslaughter.  The issue of self-defence came out during his evidence in cross-examination.  This came out in the heat of him giving evidence relating to provocation and this should not be regarded as a defence that he was actually pursuing and one that he intended to make.  The Judge was obliged to put this to the jury since it was in evidence.  The applicant should not be penalised for what was not really a defence which he intended to run at the trial.  The applicant is entitled to be given full 1/3 discount from the starting point.”  

6. In this application, we believe that the same full discount should have been given to the applicant and for those reasons, we would give leave to appeal and, treating this application as the hearing of the appeal, we will set aside the sentence of nine years and six months’ and substitute it with one of eight years’ imprisonment.