HKSAR v. MARIA REMEDIOS COADY

CACC 119/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 119 OF 1999

(ON APPEAL FROM HCCC NO. 194 OF 1998)

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J U D G M E N T

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Keith JA (giving the judgment of the Court):

1. Yesterday morning we handed down judgment on the Appellant's application for leave to appeal against her conviction for murder. We allowed the appeal and quashed the conviction on the ground that the issue of provocation should have been left to the jury. In the normal course of events, we would have included in our judgment our decision as to whether to order the re-trial of the Appellant or whether to substitute for the Appellant's conviction for murder a conviction for manslaughter. The only reason why we did not do so was because Mr Gerard McCoy SC for the Appellant and Mr Andrew Bruce SC for the prosecution asked us not to decide that issue without a further hearing if we allowed the appeal only on the basis that the issue of provocation should have been left to the jury. Accordingly, in our judgment we directed that the appeal be re-listed for hearing on a date to be fixed after consultation with counsel's diaries for the issue as to whether we should order a re-trial or substitute a conviction of manslaughter to be addressed. We directed that the Appellant should remain in custody in the meantime.

2. Yesterday afternoon, the court received a letter from the Appellant's solicitors contending that the court had had no jurisdiction to order the Appellant to remain in custody. Had we been told at the hearing of the appeal that the effect of taking the course which we were being requested to take could have resulted in the Appellant being at liberty between the handing down of our judgment and the hearing at which what was to happen in the future would be decided, we would not have acceded to the request which had been made to us. Accordingly, we decided to convene a hearing for today in order to decide that which we would normally have included in our judgment, namely what is the appropriate course to take now.

3. Mr Keith Oderberg, who appears today for the Appellant in the absence of counsel who represented her at the hearing of the appeal, initially told us that he was not in a position to address us on the issue as to whether we should order a re-trial of the Appellant or whether we should substitute a verdict of manslaughter. He therefore urged us to defer our consideration of that issue until such time as informed instructions had been taken from the Appellant and from counsel who had appeared at the trial, and to adjourn the hearing to a date on which Mr McCoy would be able to represent the Appellant. We were not prepared to do that. We thought that in the circumstances which had occurred, we should revert to our usual practice from which we had been deflected only to accommodate Mr McCoy and Mr Bruce. It is fair to say that we had already heard full submissions on the topic from Mr McCoy and Mr Bruce, save only for the impact on our decision of any communications passing between the prosecution and the defence at the trial, relating, for example, to the possible acceptance by the prosecution of a plea of guilty to manslaughter. It was not thought appropriate for us to be told about those communications before we had disposed of the Appellant's appeal. That was the only reason why we decided to accede to the request which had been made to us.

4. Mr McCoy (no doubt acting on the Appellant's express instructions) had been arguing for a verdict of manslaughter to be substituted. Mr Bruce had been arguing for a re-trial, but having discussed the matter today with Mr Oderberg, he is content for a verdict of manslaughter to be substituted, in view of the fact that the Appellant has conceded today, in response to a question from the court, that the deceased did indeed die at her hands, and has claimed through her counsel that she had been provoked into killing him. Although there is agreement between counsel as to the course which should be taken, we still have to be satisfied that that is the right course.

5. In our judgment, we expressed our provisional view on the topic. We said:

"The usual order would be for a re-trial. After all, substituting a verdict of manslaughter would deny the prosecution the opportunity of obtaining a finding from the jury that such provocation as there might have been was not sufficient to justify a verdict of manslaughter. We recognise that ordering a re-trial would enable the Appellant to have a second opportunity to run the defence that she had not been the assailant at all, when no valid criticism of the trial on that issue has been established. But that is the price which would have to be paid for both sides not pointing out to the judge the evidence which raised the issue of provocation."

The Appellant's confession today that she killed the deceased has meant that ordering a re-trial would not enable the Appellant to have a second opportunity to run the defence that she had not been the assailant at all.

6. However, this morning Mr Bruce told us that, in the course of the trial, the prosecution had indeed offered on a number of occasions to accept a plea of guilty to manslaughter on the basis of provocation at any time prior to the close of the prosecution case, on condition that it was provided with facts which were capable in law of supporting such a plea. We regard that as crucial. If the prosecution had been prepared to accept a plea of guilty to manslaughter if the facts relied upon were in law capable of supporting such a plea, it would not, we think, be right to order a re-trial - unless that is what the Appellant wanted, which she does not. To order a re-trial in preference to substituting a conviction for manslaughter would, in effect, be permitting the prosecution to go back on the stance which it was adopting in the course of the trial, and that, we think, would be unfair to the Appellant. We recognise, of course, that the conditions which the prosecution imposed on its acceptance of a plea of guilty to manslaughter were not satisfied. But the fact remains that by our judgment we have concluded that the evidence which was before the jury (admittedly given to the jury by the Appellant after the prosecution had closed its case) was capable in law of supporting a plea of guilty to manslaughter.

7. For these reasons, we are prepared to take the course originally urged upon us by Mr McCoy, and today agreed to by Mr Bruce, and to order, pursuant to section 83A(2) of the Criminal Procedure Ordinance (Cap. 221), that there be substituted for the Appellant's conviction for murder a conviction for manslaughter on the ground of provocation. We propose to adjourn the question of sentence to a date to be fixed after consultation with counsel's diaries. There is, of course, no jurisdictional bar now to remanding the Appellant in custody until then, and that is the course which we propose to take, subject to any submissions which Mr Oderberg may wish to make.

8. Finally, we should add that the absence of any reference in this judgment to the jurisdictional issue raised by the Appellant's solicitors' letter does not mean for one moment that we agree with it. It is simply not an issue to which we have given further consideration.