THE QUEEN v. FUNG KAM KEUNG

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JUDGMENT

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Silke, V.-P. :

1. This is the judgment of the Court.

2. Fung Kam Keung, aged 25, appeared for trial before Barnes, J. and a jury on an indictment containing three counts. The first alleged the murder of a 14 years 7 months old boy, Lee Shu Leung; the second, the attempted murder of his sister, then aged 12 years 5 months, Lee Kit Hing; the third, stated to be an alternative to the second, alleged the wounding, with intent to do her grievous bodily harm, of the girl. All this on night of 23rd June 1988 at Rm.3114, Man Chak House, Hing Man Estate, Chai wan - "the flat".

3. As the issues raised here are points of law, an appeal lies of right but in case the question arising can be construed as mixed law and fact, we give leave as necessary and treat the hearing as the rearing of the appeal.

4. The appellant purported to plead guilty to manslaughter on the first count and to the third count as charged . Those pleas were not acceptable to the Crown and the appellant was arraigned upon the first and second counts only. He was not left in charge of the jury on the third count and, initially, this caused some concern. However counsel, having helpfully brought to our attention Cole [1965] 2 QB 388, referred to with approval in R. v. Lam Kwok Hing [1989] 2 HKLR 282, disquiet was removed. It was proper to put the plea on the third count aside until the jury had determined guilt or innocence on the first two.

5. The appellant was convicted of murder of the boy but acquitted of the attempted murder of the girl. Upon conviction he was sentenced, as is mandatory, to death for murder and, being convicted on his own plea on the third count, to 8 years' imprisonment in respect of it. The appellant now appeals against the conviction for murder.

6. Mr. McCoy, who appears for the appellant in this Court, originally filed five grounds of appeal to which he added two more at the commencement of the hearing, this without objection from the Crown. Of those grounds two, grounds 1 and 7, were but faintly argued. Three, grounds 2, 3 and 4, were not advanced at all. It is grounds 5 and 6, the latter as amended, which need the consideration of this Court.

7. The jury had for consideration, and neither the killing of the boy nor the wounding of the girl was disputed, three pieces of evidence upon which to decide whether the killing of the boy was murder or manslaughter. The first was the evidence of Lee Kit Hing who, at the time of giving of her evidence, was 13-years and 7-months old. She said that she and her brother lived in the flat with her father, her mother and father having separated some years before. Also residing there was the girlfriend of the father, Szeto Mei Ling, a dance hostess.

8. The appellant was well known to the family. The girl called him "Brother Sai Chau". Some time in June 1988 her father went to Mainland China. On 22nd of that month Miss Szeto had left the premises in the evening for work and the two children were alone there. They went to bed. The girl was wakened from sleep by a knock on the door. She woke her brother. Both children went to open the door.  Outside was the appellant holding a bag in his hand. Her brother told him to come in. The appellant entered, said nothing and sat on the sofa taking something from his bag. The girl went back to sleep on the upper bunk of the bunk bed. Her brother returned to his bed on the lower bunk. She was woken some time later by a sound which seemed to her to be her brother saying that he felt very painful. She looked out and saw the appellant hitting her brother. At that point she was unclear as to whether the appellant had anything in his hand or not. She asked what was going on whereupon the appellant came up to her holding a glass bottle which he broke and then used to hit her. She was in pain but had the good sense to, as she put it, "play possum" pretending as if "I was dead". The appellant put his finger under her nose which she thought to be a test to see if she were still breathing. The girl continued to pretend she was dead.

9. The appellant then returned to further beat her brother whom she heard screaming out. She heard them going into the kitchen and she saw the appellant open a thermos flask and pour hot water onto her brother. She heard the brother ask why the appellant had hit him to which the appellant replied that he hated "her daddy" very much. There was a conversation during which the appellant said to her brother "well, you can choose either to jump off the balcony or go with me" to which her brother did not reply but kept on screaming. After some time the appellant returned again apparently to see if she were still breathing and she was chopped several times.  She heard the sound of the opening and the closing of the door iron grille and after that there was no more noise. She tried to get up but failed and then Miss Szeto arrived and she was taken to hospital.

10. The appellant was arrested at 5:00 a.m. on 24th June 1988 at the Wai Ching Plastic Mould Factory. He was told that he was being arrested in connection with the murder of Lee Shu Leung and the wounding of Lee Kit Hing to which the appellant made reply:

"I did this case but I wish to talk after returning to the police station."

11. At 7:45 a.m. on the morning of 24th, at the Regional Crime Headquarters Hong Kong Island, the appellant, under caution, made a further statement. In it, having admitted the killing and the wounding, he then went on to describe the incident. He said that at about 1:00 a.m. on the 23rd he bought a bottle of large size San Miguel at the noodle stall below Man Fu House and went to the flat intending to find the father whom he referred to as "Kai Chai". On arrival the door was opened by the boy, to whom he referred as "Keung Chai", but the father was not at home. The boy went back to sleep, the girl whom he referred to as "Kit Hing", was asleep on the upper bunk. The appellant himself sat on the sofa to drink beer. He then went on:

"Suddenly, for unknown reason, I felt disturbed. I went into the kitchen to pick up a vegetable chopper. (I) (sic)then went up to Keung Chai to chop 'Keung Chai' a few times. Keung Chai got up and went to the kitchen. I thus chased after him and continued to chop him. I was then very much disturbed and (I)(sic) even did not know how many times I had chopped 'Keung Chai'. Following than, 'Keung Chai' lied down next to the refrigerator. I noticed that 'Kit Hing' had got up to look. I therefore went up to chop a few times on the head of An 'Kit Hing'. I looked over my shoulder and noticed that 'Keung Chai' had gone to the verandah. So I followed to the verandah. Keung Chai was lying in the verandah, staring at me and (he)(sic) still had breath. I went back to the house.  I poured all the kerosene to the kitchen floor. Then (I) (sic) walked up to Kit Hing, touched her a few times. (I)(sic) knew she was not dead. I then thought it did not concern her so (I) (sic)did not chop her any further. Then I went into the bathroom to shower, without taking off the clothes."

12. He described taking money and preparing to leave. As he did so, the boy caught hold of his leg. He tried to free himself but the boy did not let go so he dragged the boy along as he went out of the premises taking him to the 29th floor. At a corner of tile staircase a cylinder of liquid petroleum fell on the boy, the appellant attempted to lift it away but, his hand being slippery with blood, lost his grip and it hit the head of the boy who then released his prasp. He then described how he left the premises.

13. Later he described his relationship with the father of the children saying that he was his "big brother" in the Fook Yee Hing Triad Society. He came to know the two children after the father's release from prison. At a time closer to the killing he said that, because the father had failed to help him in his fights with other people, he did not wish to remain a member of the triad society. He told the father he no longer wished to follow him. The father demanded a fifty thousand dollar separation fee to which the appellant agreed but did not pay. He was pressed for repayment in phone calls from the father and by people whom he said the fattier had sent to hit him. Near the 23rd June a message had been given to him that if he did not get the fifty thousand dollars he had better not "come in and out of Chai Wan". This infuriated him. On the night of the incident the more he thought about it the more he became infuriated and he got a bottle of beer and went up to talk to the father. In the flat, drinking the beer, his fury increased and he felt his mind was troubled and confused.  It was then that he did the chopping.

14. It will be clear from that recitation of events that his followed closely upon that given by the girl.

15. His evidence at trial was however different. He began by describing his relationship with the father - which followed very much the lines of his statement - and how he had met and come to know the children. He described the father as being very aggressive towards them - and the girl had accepted in evidence that her father had a temper. He had not seen the father for about a month prior to the 22nd June. He described the father's attitude when he was asking about the payment of the fifty thousand dollars as "belittling" him. He said he met other members of the Fook Yee Hing triad who told him that big brother, the fattier, wanted to see him. He was afraid of the father.

16. On the evening on the 22nd he had had a meal with his elder sister and his brother-in-law. In the course of it he had five or six bottles of beer. At about 12:30 a.m. he decided to go home then changed his mind and bought, in a noddle shop near the flat, a bottle of beer and some peanuts. He decided he wanted to see the father and went to the flat. There the boy opened the door for him and he went inside, the boy and the girl returning to sleep.   Before this he had asked the boy where his father was to which the boy replied that he was not in. He sat there to wait for the father,  having asked the boy's permission.

17. He drank beer for a period of time and then went to the boy and "patted on Keung Chai to wake him up". He asked again where the father was and why had he not returned to which the boy replied that he had already told him and "Why was he so troublesome". The appellant returned to the sofa. He took another bottle of beer from the kitchen and drank it.  He then asked of the boy what he was doing a few days before when the appellant had seen him in Taikooshing, wearing school uniform and with a group of others. To this the boy made no response so he went and ''patted on him" again.  He repeated the question.  When the boy said that the group were his schoolmates he told him he should not go round with them because one of them, who was over 21 years old, had quarrelled with the appellant and he thought the group were triad elements which was why he warned the boy. As the boy did not reply he "patted on him with great force". The boy told him it was none of his business whatever the quarrel the appellant might have had with one of the group. The appellant thought that the boy despised him.

18. After the boy told him to mind his own business he hit the boy on the face with the palm of his hand. This because he was full of anger at the boy's apparent change of attitude from his previously friendly one. He went on that the boy then hit him with his fist. The appellant then hit him back. There was a struggle on the bed and the boy used his legs to kick him away and got up and went into the kitchen. He told the boy that he would wait until the father's return and would report to the father the boy's behaviour. The boy then picked up a kerosene stove and threw it at him whereupon the appellant picked up a chopper and chopped the boy because he had it in mind to stop the boy throwing anything further at him.

19. Having chopped the boy several times the boy fell. The appellant went to the kitchen and then came back to the living room and saw the girl who, seeing blood all over him, screamed out for help. The appellant became very frightened and told her to stop screaming. Because he could think of no other way to stop her he climbed onto the bed and chopped her.  She covered her head with the blanket but he pulled it away and slapped her because she continued to scream. Then he thought she fell unconscious.

20. The boy came back from the kitchen rushing towards the appellant who picked up the chopper again and chopped him several more times. The boy ran to the balcony calling for help. The appellant chased after him and continued to chop him until he fell onto the floor.

21. The appellant then forced open some drawers searching, he said, for the Fook Lee Hing membership list, and opened a small safe to see if it might be there. In that safe he found money to which he paid no heed, but later, after taking a shower, he took the money and left.

22. The trial judge, after discussion in the absence of the jury, left provocation to the jury. Mr. McCoy's first ground of appeal alleges a misdirection by the trial judge in that a direction he gave was contrary to section 4 of the Homicide Ordinance, Cap.339. This stems from the following passage at page 5 of the summing up:

"Provocation is some conduct, that is, some words that are spoken, some acts that are done or a combination of the two, some conduct such as that or some course of conduct which causes in a defendant a sudden and temporary loss of self-control, and it must be conduct which would cause a reasonable person to lose his self-control and to behave as this defendant did."

No issue is taken as to that paragraph.

23. The judge then went on :

"There are, therefore, two important questions for you to consider: (1) Did the allegedly provoking conduct, that is, the conduct of the boy's father prior to the night of the 22nd or 23rd of June, and the boy's own conduct in the early hours of the 23rd of June, did that conduct of either one or both, but particularly of the boy, cause the defendant to lose his self-control?  I should add if there was no conduct on the part of the boy, then there wouldn't be any conduct capable of amounting to provocation in this case. So, did conduct such as that cause the defendant to lose his self-control? If you answer that 'No',  well then, provocation is no longer part of the case."

24. We accept that this wording was perhaps unfortunate, giving the impression of taking away with one hand and giving with the other. But that is as far as it goes. There could have been no provocation from the father who was not present at the time and whom the appellant had not seen for about one month. The case that was being made at trial was that the conduct of the father had overlaid the mind of the appellant to such an extent that, combined with the actions of the boy victim, it amounted to sufficient provocation to reduce the charge from murder to manslaughter. There was no immediacy in the father's conduct which is the essential for the conduct of the provoker to lead to the "sudden and temporary loss of self-control" in the provoked. The jury would have been perfectly entitled to take the view that the conduct of the boy, by itself, did not amount to provocation. If anything the direction which we have set out was over favourable to the appellant and this ground has not been made out.

25. The other ground which was but faintly argued, and this one added at the hearing, was ground 7 which reads:

"Exhibit 8, a videotape, was wrongly received into evidence, contrary to S.29A(7) Evidence Ord. Cap.8, it not being a 'record'".

26. Section 29A(7) of the Evidence Ordinance relates to the production "without further proof" of certain records of which a videotape is not one. Here there was agreement between counsel on the production in evidence of the videotape and the transcription of that which occurred upon it. It was produced by consent which obviated the necessity for any proof.

27. Grounds 5 and 6, which we find it necessary to fully consider, read:

"5.    The learned judge failed to hold an enquiry as to whether the deceased's sister victim of Counts 2 and 3, was old enough or mature enough to understand the taking of an oath, so as to swear/affirm. If she was not old enough her evidence would require corroboration."

We take that last sentence to mean that if her evidence was unsworn corroboration of it would be required.

"6.    The learned judge failed to warn the jury that it was dangerous to accept the evidence of PW12 (the girl) without corroboration, as PW12 was a suspect witness."

They run together.

28. Mr. McCoy has drawn our attention to sections 3 and 4 of the Evidence Ordinance, Cap.8.   Section 3 provides that a child under the age of 7, unless appearing capable of receiving just impressions of the facts respecting which the child is examined and of relating them truly, shall be an incompetent witness. Section 4 reads as far as it is materials:

"Where, in any proceeding against any person for an offence, any child of tender years who is tendered as a witness does not in the opinion of the Court understand the nature of an oath, the evidence of that child may be received, though not given upon oath, if, in the opinion of the Court, the child is possessed of sufficient intelligence to justify the reception of the evidence, and understand the duty of speaking the truth; ....." (Emphasis supplied)

The section then goes on:

                "Provided that -

29. The Juvenile Offenders Ordinance, Cap.226, in its section 2 defines "child" as meaning "a person who is, in the opinion of the Court having cognizance of any case in relation to such person, under the age of 14 years; ...". It also provides, in its section 3, that it shall be conclusively presumed that no child under the age of 7 years can be guilty of an offence.

30. It is Mr. McCoy's contention that in every case in which a "child of tender years" is involved as a witness it is necessary for the Court to be seen to hold an enquiry so that it can form the required opinion as to whether or not that child should be sworn. Here it is accepted that there was no such enquiry. That being so, Mr. McCoy submits, the effect was to make the evidence of the girl inadmissible

31. In addition Mr. McCoy submits that, even if the girl were properly sworn, there was an obligation upon the trial judge to give a warning as to the care which must be taken with the evidence of a child. For this proposition he relies on The Director of Public Prosecution v. Hester [1973] AC 296.

32. Children, and the effect of age upon the admissability of their evidence and whether they should or should not be sworn, have been the subject of consideration in a number of cases. Nowhere is the expression "a child of tender years" defined. First in time is Southern [1931] 22 Crim.App.R. 6.  There the evidence was given by a 5-year old girl and unsworn. Reference was made to the Childrens Act of 1908 and its requirement for corroboration of such evidence. The trial judge failed to bring that to the attention of the jury and never used the word "corroboration" throughout his summing up. The issue was also raised whether the unsworn evidence of the girl was properly admitted at all for, as Talbot, J., in delivering the judgment of the Court, said at page 13:

"The first condition is that the court must clearly be satisfied that the child does not understand the nature of an oath. Unless this condition is fulfilled, there is no power to admit evidence not on oath."

The judgment went on that that Court was not to be taken as expressing an opinion that it was legitimate to receive the evidence of a child of tender years without some investigation by the Court, in the presence of the accused and the jury, as to whether the provisions of the statute had been satisfied.

33. In Rex v. Reynolds [1950] 1 KB 606 the evidence concerned that of a girl of 11. There had been a discussion between counsel and the Chairman of sessions as to the child's capacity to give evidence on oath. The jury were directed to leave the Court.   While they were out a school attendance officer was called as to the capacity of the child. The jury, at the conclusion of the officer's evidence, returned to Court and the child was sworn. The Court of Appeal held this to be a material irregularity in that in a criminal trial all the evidence should be given in the presence of the jury.

34. Both Southern and Reynolds were sexual cases.

35. In this jurisdiction Chung Kwong v. The Queen [1959] HKLR 261 reviewed the authorities concerning the duty of a judge, when a child is tendered as a witness, to make investigation himself as to whether the child understood the nature of the oath, the duty of speaking the truth and whether the child was possessed of sufficient intelligence to justify the reception of the evidence - and to give the corroboration warning.

36. There the child was 9 years old and was - not dissimilar from here - the brother of the deceased said to have been murdered.

37. Sir Michael Hogan, C.J., in delivering the judgment of the Full Court, accepted that section 4 of the Evidence Ordinance did not itself lay down any particular procedure to be followed by the Court in order that it might form the necessary opinion. He considered, amongst others, Southern and Reynolds and made reference to Surgenor (1940) 27 Crim.App.R. 175 where the Recorder had made no enquiry as to the child's understanding of an oath and left her evidence to be given unsworn.

38. In parenthesis in Surgenor the Court of Appeal intimated that an enquiry should have been made but, the evidence being makeweight, there was no harm done to the defendant.

39. The Full Court in Chung Kwong was informed that, while it was not recorded, the judge had asked the child if he understood the duty of speaking the truth to which the child had replied "yes". It was held that the enquiry should have been recorded but, like Surgenor, the verdict was not interfered with and for the same reason. Further that  the omission to warn was not fatal as the child's testimony was so fully corroborated that the omission could have had no effect on the jury's conduct.

40. In Chan Chi v. The Queen [1968] HKLR 61 (F.C.) the issue arose again. The child was a principal prosecution witness and the record made by the judge of the District Court as set out at page 62 of the report was:

"PWl called forward. Court inquires age. Said 14 by European reckoning. Court decides not of tender years."

41. In his "judgment" the judge had said that he did not really think the boy looked of tender years and went on:

"The Courts have never so far as I know decided exactly where to draw the line as regards tender years and it may well be it need not be drawn as it is only necessary to know on which side of it a proposed witness falls. This could depend on other matters than years since birth. Tender years in one country may not be so in another."

42. Chan Chi referred to R. v. Horsburgh [1966] 3 Canadian Criminal Cases 240, where the Ontario Court of Appeal analysed the issue by dividing infant witnesses into four categories and, having done so, went on to state, as set out in Chan Chi at page 64:

"The necessity for an inquiry arises only when the child witness is one of 'tender years'. The fact that some questioning did take place does not lead to the conclusion that the witnesses were of 'tender years'. The brevity of the examination indicates to me that the presiding judge did not consider a more exhaustive examination necessary in order to determine that the witnesses were competent. A child of 14 is presumed subject to conviction and punishment under the Criminal Code and in my opinion, a similar presumption must apply to the competency of such child to give sworn evidence. An unnecessary enquiry does not defeat the presumption of competency unless the questioning actually elicits information which clearly shows that the child does not appreciate the nature or consequence of an oath."

43. As we have already noted, in Hong Kong a child over 7 is subject to conviction and punishment. The Canadian decision, cited with approval in Chan Chi, was considering a different statutory provision. Chan Chi approved that which was said in Horsburgh and went on at page 64:

"When the judge in the Court below formed the view that the witness put before him was not a child of tender years, an impression which was strengthened by the reply that he was 14 years of age, we think the judge was entitled, without further enquiry, to treat the witness as competent, and to take sworn testimony from him."

44. Coming to more recent authorities. In Lal Khan (1981) 73 Crim.App.R. 190 the child victim, a prostitute aged 11 and at trial 12, was, without previous inquiry, sworn. The jury were warned as to the danger of convicting on the uncorroborated evidence of the girl. The Court held that the judge should, in his discretion, have questioned her as to her understanding of the nature and solemnity of an oath in the presence and the hearing of the jury. Because that was not done, the appeal was allowed and the proviso was not applied. That Court approved Lord Goddard's dictum in Reynolds and recited it as being:

that where there is a child of tender years there is an obligation upon the judge in the first place to make inquiries of that child as to its understanding of the nature of an oath, and, secondly, that inquiry has to be done - and other authorities made it quite plain - in the presence of and in the hearing of the jury."

45. It is clear that the reason for the refusal to apply the proviso was the sexual nature of the case.

46. In R. v. Z [1990] 3 WLR 113 the Court held - again a sexual case and the child being aged 5 -

"that whether a young child should be permitted to give evidence was within the trial judge's discretion and was governed by section 38(1) of the Children and Young Person Act of 1933 as amended; that no minimum age and no corroboration of the child's evidence were required, that the question for the Court's decision in each case was whether the child possessed sufficient intelligence to justify the reception of the evidence and understood the duty of speaking the truth; .. "

The Court felt that the younger the child the greater the care that had to be taken.

47. In Fazal Mohammed v. The State [1990] 2 WLR 612, the Privy Council had for consideration an appeal from the Court of Appeal of Trinidad and Tobago. They applied Lal Khan but they were also informed, and accepted, that established practice in Trinidad and Tobago required a trial judge to question a child under 14 as to the understanding of the nature of an oath before permitting the child to give sworn evidence. That inquiry should be recorded.

48. We are not, in Hong Kong, aware of any practice similar to that as stated in Fazal Monammed though Mr. Duckett informs us that he accepts that it is the usual practice in Hong Kong, where the evidence of a child is concerned, for an investigation to take place. We are somewhat at a loss to understand the ambit of that concession. It is always at the discretion of a judge as to whether a child should or should not be sworn. A person ceases to be a child, within the definition of the Juvenile Offenders Ordinance, upon reaching the age of 14. But the Evidence Ordinance does not refer to child, it refers to "child of tender years".

49. There will be obvious cases where an inquiry would be required. In Fazal Mohammed the Court, when referring to the age of 14, was referring to the established practice of the Courts of Trinidad and Tobago. The older the child, bearing in mind Z, the less necessity there is for the holding of an investigation. We do not accept Mr. McCoy's argument that before the judge forms an opinion of a child's competency-such investigation is mandatory. We do not wish to be taken as indicating as an absolute rule, as in Lal Khan and Fazal Mohammed, that any child in long Kong under 14 must be the subject of an enquiry in the presence of the jury before the judge can properly form an opinion. It is, however, advisable that a trial judge should place on record the fact that he has formed an "opinion" as to the maturity and understanding of a child.

50. In this case Barnes, J. was the seeing judge and, while it is in a sense after the event, the girl in her sworn evidence was competent, intelligent and obviously of maturity. It was clear that she had not led a sheltered life, having at one stage being placed in an orphanage while her father was in jail, and being the child of a broken family.

51. In our judgment that the trial judge gave no indication here of the opinion he had obviously formed did not affect the admissability of the girl's very relevant evidence.

52. On the second point: Hester was again a sexual case, the respondent being charged with indecent assault on a girl of 12.  She gave evidence on oath. Her 9 year old sister gave unsworn evidence. The issue raised was whether the evidence of the unsworn child could amount to corroboration of the evidence of the sworn child. The Court of Appeal held that it could not. The House of Lords reversed that decision. It was in this context that Lord Diplock, at p.328 D-H, made the comments he did. It is Mr. McCoy's submission that the requirement for a corroboration warning is not confined to sexual cases and he has referred us to Phipson on Evidence: 14th Edition paragraph 14-14 which makes it clear that, in the present state of English law, it is not obligatory to give such warning this comes from the provisions of section 34(2) of the Criminal Justice Act 1988 which is not part of the laws of Hong Kong - but it is to be expected in many cases that. judges will give a warning of the need for care in assessing a child's evidence.

53. In Morgan [1978] 3 All ER 13 it was held - again this was a sexual case, indecent assault on a boy of 11 - that it was not possible to state the age above which it was unnecessary for a judge to warn the jury of the risk of convicting on the uncorroborated evidence of a child. The Court there considered Hester, D.P.P. v. Kilbourne [1973] AC 729 and Boardman v. D.P.P. [1975] AC 421, all of which impinged on the issue which lay for the decision of the Court. Two of the "child" witnesses, one aged 12 or 13 and the other 17, were not victims.

54. The Court felt that the age at which the warning became unnecessary was a matter of discretion for a trial judge who would be much better placed than an appellate court to consider the matter. It suggested that, having put the question to himself as to whether the warning was necessary, the judge should go on (at page l6g) :

"He might say to the jury: If you think that this boy is of an age where the sort of risks exist against which the rule regarding corroboration is a safeguard, then you should look and see what corroboration exists."

55. In Morgan that had not been done in respect of the 12 to 13 year old boy and this the Court found to be an omission. As the strength of the prosecution case was so great the appeal was dismissed despite the irregularity.

56. R. v. Buck [1981] Crim. Law Rev. 108 - a theft case - made reference to the practice, not a rule of law, that a jury should be warned of the danger of acting on the uncorroborated evidence of a child. The age of the child there was 9.

57. Mr. Duckett conceded that in Hong Kong a direction as to the need for care is required when the witness is "young" - we would prefer to designate the witness as "a child " - but that each case must be considered on its own merits.

58. The judge here, with knowledge of her age, clearly took the view that the girl was a composed and effective witness. The basics of her evidence coincided with that of the appellant - more closely, as we have indicated, with that which he said in his cautioned statement. Provocation had rightly been left to the jury, but the evidence grounding it was sparge to say the least. Counsel for the Crown at trial had, during the discussions in the absence of the jury, made mention of self defence being open to the appellant but, by no stretch of our imagination, could we consider that to have been present.

59. We consider this to have been a border line case on the necessity for a warning. The absence of a warning here was, the majority thinks, an irregularity. None of us think it to be material. In case we are wrong and it was material we would state that no miscarriage of justice was occasioned.

60. In the premise there is no question of our allowing the appeal and substituting a conviction for manslaughter or, alternatively, of allowing the appeal and ordering a new trial. We feel no unease as to the safe and satisfactory nature of the verdict.

61. We would therefore dismiss the appeal.