HKSAR v. LIU SUN KONG

CACC 396/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 396 OF 2015

(ON APPEAL FROM HCCC NO 516 OF 2014)

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REASONS FOR JUDGMENT

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Hon Macrae JA (giving the Reasons for Judgment of the Court):

1.  The applicant was convicted on 10 November 2015 before Zervos J and a jury of the murder of Liu Wing Sang (“the deceased”), contrary to Common Law and punishable under section 2 of the Offences against the Person Ordinance, Cap 212. He was sentenced to life imprisonment. He duly applied for leave to appeal against both conviction and sentence.

2.  On 7 November 2017, we granted his application for leave to appeal, allowed his appeal and quashed his conviction.  We ordered that the applicant should be retried on a fresh indictment.  We also indicated that we would give reasons for our decision in due course.  These are our reasons.

The prosecution case

3.  It was not disputed that on 23 May 2014, at shortly before 11 pm, the deceased was found lying on the floor of Ngau Kee Store in Mun Hau Tsuen, Sheung Shui Wai with a number of wounds to his body.  He was unresponsive and had no pulse or heartbeat.  He was taken by ambulance to the Accident and Emergency Department of North District Hospital, where he was certified dead at about 11:43 pm on the same day.  A post‑mortem examination revealed that the cause of death was a stab wound to the left lower front of the chest, which had penetrated the left ventricle of the deceased’s heart.

4.  The applicant was arrested at 12:38 am on 24 May 2014 in Sheung Shui Wai.  His clothes and hands were bloodstained, although he appeared to have no injuries himself.  Upon arrest, the police seized two knives from a shoulder bag he was carrying, one of which was 7½ inches long with a sharp blade; the other, 5 inches long with a blunt blade.  The longer of the two knives was bloodstained and had the DNA of the deceased attached to it.

5.  The applicant was cautioned upon arrest, whereupon he was recorded as having responded: “It was him who beat me up several times. I got fucking pent‑up anger so that I took him out”.  He was asked which knife he had used to kill the deceased, to which he replied: “The knife in the bag”. When the arresting officer pointed to the longer knife, the applicant responded: “It was the one”.  The post-recording of the applicant’s answers to caution was admitted into evidence as voluntary[1].

6.  The prosecution alleged that the applicant had set out, on the night on 23 May 2014, armed with a knife, either with the intention to kill or to cause grievous bodily harm to the deceased, against whom the applicant held a grudge.  He was said to have lain in wait for the deceased, who routinely left his house each night to check on his garage.  When the deceased appeared, the applicant attacked him near a banyan tree, stabbed him with a knife and further pursued him into Ngau Kee Store, where he pressed his body on top of the deceased and inflicted two stab wounds to his chest, one of which was fatal.

The defence case

7.  The applicant elected to testify at trial.  In essence, he said that he had not intended to kill or cause really serious bodily harm to the deceased.  Rather, he had acted in self‑defence or as a consequence of being provoked.

8.  The applicant testified that he had known the deceased since childhood.  After an incident in 1997, which involved the deceased using the applicant’s brother’s Identity Card to subscribe for two mobile telephones for his own use, the applicant and the deceased had quarrelled, which developed into a grudge over the years.  As a result, the applicant had on occasion been beaten and injured by persons the applicant said were associated with the deceased.  He had also been hospitalised.  He claimed that the deceased would scold the applicant whenever they met.

9.  On 23 May 2014, the applicant said he left home at about 7 pm and rode his bicycle to Sheung Shui to have dinner.  He returned to Sheung Shui Wai sometime after 8 pm.  CCTV screenshots showed that the applicant subsequently entered and left the village in Sheung Shui Wai at 10:20 and 10:21 pm, and again at 10:29 and 10:30 pm, respectively. He said that he was using his bicycle to exercise.

10.  Having parked his bicycle against a wall, he encountered the deceased who immediately swore at him.  The applicant said he was scared and consequently attempted to avoid the deceased by leaving the scene on his bicycle.  When he arrived in the vicinity of a banyan tree in the village, the applicant chanced upon and spoke with his cousin, who was a priest.  When they parted company, the deceased suddenly appeared, hit him on the head twice and swore at him.  The applicant then described being beaten and falling to the ground, during which his spectacles became dislodged.  As he fell, he managed to grab hold of the deceased’s leg and they both fell together.  It was at this time that a knife dropped out from the deceased’s body and landed beside the applicant.  Since he was very scared, he picked up the knife and stabbed the deceased twice at the area of his right lower leg.

11.  At this point, another person appeared, pressed on the applicant’s shoulder and told him not to move.  Accordingly, he put down the knife and the other person walked away.  However, the deceased kept hitting, threatening and scolding the applicant.  When the deceased tried to pick up the knife, the applicant pushed him away and picked up the knife himself.  The two pushed and grappled with each other as they entered Ngau Kee Store.

12.  In respect of this aspect of the account, and in view of the principal ground of appeal argued by the applicant concerning the failure of the judge to direct the jury on the alternative verdict of manslaughter by an unlawful and dangerous act, it is necessary to set out this part of the applicant’s evidence-in-chief in full[2]:

“Q. All right, carry on, tell us what happened then.

A. Then the two of us (were) pulling and dragging each other and then went into Ngau Kee Store.

Q. Who went in first?

A. Almost at the same time.

Q. And how were you feeling at this time?

A. Very scared, very confused.

Q. Why didn’t you just run away?

A. I had no idea, I was not clear at that time.

Q. And when you got to the Ngau Kee Store, what happened?

A. He fell down and then I pounded on him.

Q. What do you mean you “pounded on him”?

A. I pounded on his body.

Q. With what? With your fists or …?

A. I used my left arm to press on him.

Q. Pressed on him where?

A. Probably the neck.

Q. Right. And carry on, tell us what happened then?

A. And then I left, I left Ngau Kee Store.

Q. The knife? Did you …

A. I was holding the knife and I left with the knife.

Q. You’ve seen the autopsy report, you’ve seen the photographs. The deceased had many stab wounds. How did he get those?

A. I had no idea.

Q. Was it very confusing at the time?

A. Yes.

Q. Did you keep the knife with you the whole time?

A. Yes.

Q. How long were you in the store for, can you remember?

A. I don’t remember, probably not very long.

Q. When you left the store, then what happened?

A. I then ran to Man Sek Hall to sit.

Q. And did you stay there until the police came?

A. Yes.

Q. Did you have any intention to cause any serious injury to the deceased?

A. Absolutely not.

Q. Did you have any intention to kill him?

A. No.”

The summing‑up

13.  Although the judge properly held discussions with both counsel at trial, Mr John Dunn for the prosecution and Mr Oliver Davies for the defence, before their speeches and his summing‑up, there was no mention by any party, in the wake of the above passage, of a possible alternative verdict of manslaughter by an unlawful and dangerous act.

14.  Accordingly, when he embarked on his summing‑up and gave a brief summary of the respective parties’ positions, the judge made no mention of any alternative verdict to murder, save manslaughter by way of provocation[3]:

“The issue in this case, you may think, comes down to whether the defendant carried out a planned and deliberate attack on [the deceased] or whether he was or may have been acting in self‑defence or provoked.

If you decide that he was or may have been acting in self‑defence, then the verdict is not guilty of murder. If you decide so you are sure that he was not acting in self‑defence, then you go on to consider the issue of provocation.

If you decide that he was or may have been provoked, the verdict is guilty of manslaughter.  If you decide so you are sure that he was not provoked and you are satisfied so you are sure of the elements of the offence of murder, the verdict is guilty of murder.”

Throughout the remainder of his summing‑up, the judge gave no directions on a possible alternative verdict of manslaughter by an unlawful and dangerous act.

15.  After the jury had retired to deliberate, they posed two questions, which were dealt with at the same time by the judge at the beginning of the second day of their deliberations. The questions were as follows:

(The first question)

“Based on insufficient and questionable evidences and witness, jury cannot come to agreement on murder prosecution. Please provide guidance in (i) key or decisive factor in murder based on the evidence on hand; (ii) detailed definition of provocation.”

(The second question)

“If the defendant intended to attack the deceased, but not intended to kill the deceased, which finally resulted in death of the deceased, would it be classified as murder or manslaughter?”

16.  In his response to these two questions, and following discussions with counsel, the judge repeated his earlier directions on the law in respect of murder, self‑defence and provocation, this time with the addition of printed hand‑outs which were distributed to the jury.  There was again no mention of the possible alternative verdict of manslaughter by an unlawful and dangerous act by the judge in his oral directions or in the written hand‑outs.

Grounds of appeal against conviction

17.  Mr Philip Ross, on behalf of the applicant, has advanced four grounds of appeal, which may be summarised as follows:

(i)   The judge erred, in relation to the evidence, particularly in light of the second question posed by the jury, by failing to direct the jury that they could return a verdict of manslaughter by an unlawful and dangerous act;

(ii)   Following the adducing into evidence of the applicant’s subsequent conviction for wounding (which had occurred whilst the applicant was on remand awaiting trial), the judge failed either to discharge the jury or to direct them how they may or may not treat such evidence;

(iii)   The applicant did not receive a fair trial when PC 5369 was not cross-examined, in accordance with the applicant’s instructions, as to whether the applicant had told him that the knife had dropped from the deceased before being picked up by the applicant; and

(iv)   The applicant did not receive a fair trial when evidence was not adduced from two doctors relevant to the admissibility of the post-record; one of whom would have testified that the applicant had tested positive for methamphetamine hydrochloride (commonly known as “Ice”) on 25 May 2014; the other of whom would have said that the applicant was not fit to have a statement taken by the police on 24 or 25 May 2014.

18.  In relation to Ground 1, counsel submitted that the evidence raised an obvious defence that the applicant was not guilty of murder but guilty of manslaughter by an unlawful and dangerous act.  Although the deceased had suffered 27 wounds to his body, most of them were relatively minor flesh wounds and none of the witnesses was able to give a clear account of how the two more significant wounds to the chest (one of which was fatal) were inflicted. It was the applicant’s case that the knife in question had earlier dropped from the deceased and he had simply picked it up.

19.  When the jury posed the second question, the judge merely repeated the directions he had given earlier in his summing‑up concerning the legal definitions of murder, self‑defence and provocation, without considering the need for a further direction on manslaughter by an unlawful and dangerous act, which their question plainly invited.  Since the evidence, and the jury’s second question, clearly justified a direction on the alternative verdict of manslaughter by a dangerous and unlawful act, in circumstances where the question assumed an intention by the applicant to attack but not to kill the deceased, there was a material non-direction in the summing‑up: see Ho Hoi Shing v HKSAR[4]. Moreover, that course was all the more necessary when, by their first question, the jury had intimated that, in view of what they regarded as “insufficient and questionable” evidence, they could not agree on a verdict of murder.

20.  In respect of Ground 2, Mr Ross submitted that following the adducing of the applicant’s conviction for wounding by his own counsel in examination-in-chief, the jury may have embarked on an impermissible line of reasoning that because the applicant was guilty of one offence of violence, he was more likely to be guilty of murder.  He argued that the prejudicial effect of adducing such evidence far outweighed its probative value.  In such circumstances, either the jury should have been discharged following disclosure of the conviction, or there should have been a clear direction from the judge to ensure that they would not regard it as evidence of propensity.

21.  In relation to Grounds 3 and 4, Mr Ross submitted that by the failure to challenge the post-record of the applicant’s statement upon arrest, given his instructions and the medical evidence available, the applicant did not receive a fair trial.

The respondent’s reply

22.  Mr William Tam SC, on behalf of the respondent accepted that the principles governing the leaving of an alternative verdict to the jury had been fully discussed and set out in Ho Hoi Shing, but reiterated the Court’s caution, at para 15, that:

“… the evidence which may be relied on to support an alternative verdict must not be so incredible or tenuous or uncertain that no reasonable jury could have accepted it; in other words, an alternative verdict should not be put to the jury if there is no evidential basis upon which a reasonable jury could have come to that alternative verdict.”

23.  Here, the applicant had lain in wait for the deceased and then inflicted 27 wounds to his body, one of which was fatal.  In light of the applicant’s admissions, his sustained pursuit of the deceased with a knife and the number and extent of the wounds he inflicted, it was unrealistic to suggest that the applicant would have harboured anything less than an intention to cause grievous bodily harm.  Furthermore, such a defence would have distracted the jury from the applicant’s case of provocation.

24.  He relied upon the determination of the Appellate Committee of the Court of Final Appeal in HKSAR v Tam Ho Nam[5], where the applicant had mounted a frenzied attack on his girlfriend with a chopper and inflicted at least 50 cut wounds on her.  The defence at trial had been that the applicant should be convicted of manslaughter by reason of provocation rather than murder.  The Appellate Committee refused to grant leave under the grave and substantial injustice limb on the ground that the trial judge had failed to leave to the jury an alternative verdict of manslaughter by an unlawful and dangerous act[6].  It said of this ground, at para 7:

“The evidence plainly justified an inference that he had intended at least to inflict grievous bodily harm on [the deceased] …”,

And, at para 10:

“It was plainly a case either of murder or manslaughter by provocation, as defence counsel rightly accepted. Taking a view of the evidence most favourable to the applicant, there was no room for an alternative verdict of unlawful act manslaughter.”

25.  Mr Tam sought to distinguish the facts of Ho Hoi Shing from the case before us, since the appellant in that case had merely used his bare hands to strangle the deceased to death, whereas the applicant in the present case had repeatedly used a knife to stab the deceased.  He argued that intent was obvious where a lethal weapon was used to attack another.

26.  With regard to Ground 2, Mr Tam submitted that there could be no general rule that the jury should be discharged following a revelation of bad character, particularly where the accused had made the disclosure himself.  How the situation should be dealt with was a matter of discretion for the trial judge: see R v Sutton[7]; HKSAR v Lam King Yin[8].

27.  In the present case, it was apparent that the applicant’s defence counsel at trial had deliberately introduced before the jury the applicant’s wounding conviction as part of the defence case[9].  The applicant had made no complaint on appeal of flagrant incompetence against counsel at trial and, generally speaking, he was bound by the way the case had been conducted on his behalf[10]. In any event, there were justifiable reasons why defence counsel might have considered revealing the conviction to the tactical advantage of his client’s case.

28.  In respect of Grounds 3 and 4, Mr Tam observed that there was now a clear disagreement between the applicant and his legal team as to whether he was objecting to the admissibility into evidence of the post-recorded statement.  However, there was no disagreement at trial.  It was clear that the question of challenging the admissibility of the post-recorded statement was discussed repeatedly with the applicant prior to trial.  The applicant had given clear instructions to his defence team, despite some earlier prevarication on the issue, that he did not wish to challenge the admissibility of the post-recorded statement.  His evidence-in-chief was entirely consistent with those instructions.

29.  Mr Davies has, in any event, explained before this Court that it was his considered view and advice that the statement should be put into evidence because it supported the applicant’s primary defence of provocation: the applicant had told the police from the outset of his arrest for murder that the deceased had previously beaten him up a few times, as a result of which his anger became pent up.  Counsel did not want the jury to think that the applicant had invented the excuse that he was provoked for the first time at trial.  Moreover, the picking up of a knife which had dropped from the deceased was not inconsistent with what he had told the police under caution: all he had said, according to the record, when asked which knife he had used to kill the deceased, was that the knife was at that time in his bag.

Discussion

30.  We can dispose of Grounds 3 and 4 relatively quickly.  Mr Ross, with respect, appears to be labouring under the misapprehension that as long as a ground of appeal avers in some form that the applicant “did not receive a fair trial”, the fact that counsel at trial did or did not do something at trial which the applicant’s counsel on appeal contends should not or should have been done makes the trial unfair and the verdict unsafe and unsatisfactory.  We emphatically disagree with this contention.

31.  Never once in either his perfected grounds of appeal, his written submissions or his oral submissions did Mr Ross ever suggest that defence counsel’s conduct at trial was flagrantly incompetent. Yet we were obliged to listen for the best part of a day to the applicant, his counsel at trial and his then instructing solicitor being examined, cross-examined and re‑examined before this Court as to why they did or did not do something at trial, which Mr Ross contends they should not or should have done.  It seems to us that there is every danger, particularly in a jurisdiction where counsel on appeal is very often different from counsel at trial, that tactical and forensic decisions taken by counsel who has the conduct of the trial, are too readily ignored or disregarded by counsel on appeal whose appreciation and understanding of the dynamics of the case as it is unfolding, particularly in a jury trial, is necessarily imperfect or incomplete.

32.  In HKSAR v Tsang Man Kit[11], this Court said:

“In Hong Kong, unlike perhaps other jurisdictions, counsel on appeal is very often not the same as counsel at trial. It is therefore rather easier for appellate counsel to look at the evidence and trial process on paper and argue that something should or should not have been done or said by trial counsel, without a full appreciation of the tactical and forensic decisions which are being made by trial counsel (in some cases experienced criminal practitioners) as the evidence is unfolding. Looked at another way, the fact that counsel did or did not do or say something at trial for tactical or forensic reasons should not readily assist an appellant, simply because his new counsel on appeal thinks that things should have been done differently. Flagrant incompetence is, of course, another matter, but Mr Tse accepts that his complaint underlying this ground could not come anywhere near such a suggestion.” (Emphasis supplied)

The italicised part of the above passage was recently cited with approval by the Appellate Committee of the Court of Final Appeal in HKSAR v Fok Lap Yin, Ian Lee Christoffer[12].

33.  We think there were valid reasons why Mr Davies advised that there should be no challenge to the post-record, given that it set up the defence of provocation at the time of the applicant’s arrest and was not inconsistent with his claim that the knife originally came from the deceased.  Moreover, it was consistent with presenting the applicant as a man who was being open, cooperative and honest with the police.  Although it is not necessary for us to resolve the dispute between the applicant on the one hand and his counsel and solicitor on the other, we are not persuaded that counsel went against his instructions, given that the applicant’s evidence-in-chief was consistent with what counsel believed to be his ultimate position.  We reject the complaints made under Grounds 3 and 4.

34.  In respect of Ground 2, it is clear that the introduction of the applicant’s subsequent conviction for wounding was deliberately led by defence counsel at trial in examination-in-chief.  That it was a considered decision is made plain by the fact that before the applicant commenced his evidence, the judge had raised the matter of the conviction with both counsel, “so that care is taken in relation to his issue”.  Mr Davies, however, indicated that he was intending to lead the evidence at the outset of examination-in-chief because “we’re going to be honest about the whole thing, basically”.  When the judge stressed that he had only raised the matter in case it was alluded to in some way by the prosecution, defence counsel said he would “think about (it)”.  In the event, the evidence was led from the applicant as follows:

“Q. Right. Now, I want to ask you, at the time of this incident in May 2014, did you have any criminal conviction? This is in May 2014, at that time, had you been convicted of any criminal offence?

A. No.

Q. Now, since that time you’ve been locked up in Lai Chi Kok Reception Centre, is that correct?

A. Yes.

Q. And it’s fair to say you were charged with an offence there of wounding, and to which you pleaded guilty, is that correct?

A. Yes.

Q. And that incident happened inside the prison.

A. Yes.”

35.  Mr Davies has explained to us that the reason for his decision conformed with the way he wished to present the applicant to the jury, namely, as someone who was being entirely open and honest about his past. The reason for that was that the applicant was 54 years of age with a clear criminal record at the time the deceased met his death.  The wounding charge had come about after the commission of the offence for which he was being tried, in very different circumstances whilst on remand, and he had pleaded guilty to the charge.  Further, given the obvious undercurrents in the evidence in the present case about the deceased’s association with a named drug trafficker and with triad activities, he did not want the jury to think, if a good character direction was not given, that the applicant might be of similar character.

36.  We have to say that none of us would have made the same decision as defence counsel to lead evidence of the applicant’s subsequent conviction for wounding.  And even if we had, we would have wanted to ensure that the judge gave a direction to the jury to neutralise its effect as much as possible.  However, we were not counsel at trial; nor was Mr Ross. Certainly, we are not prepared to say that the decision of defence counsel at trial fell outside his discretion in deciding how best to present his client’s case.

37.  In Chong Ching Yuen v HKSAR[13], Sir Thomas Eichelbaum endorsed the view of Gleeson CJ in R v Birks[14], that:

“As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case. For example, in Rondel v Worsley [1969] 1 AC 191 at p 241, Lord Morris of Borth-y-Gest quoted with approval the following statement of the Lord President in the Scottish case of Batchelor v Pattison and Mackersy (1876) 3 R (Ct of Sess) 914, concerning the role of an advocate:

… His legal right is to conduct the cause without any regard to the wishes of his client, so long as his mandate is un‑recalled, and what he does bona fide according to his own judgment will bind his client, and will not expose him to any action for what he has done, even if the client’s interests are thereby prejudiced.

In Halsbury’s Laws of England (4^th ed.) Vol 3(1), para 518 at p 420, it is stated that:

… a barrister is ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted. Unless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client. This authority extends to all matters relating to the action, including the calling and cross-examination of witnesses, challenging a juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order or judgment.”

38.  Of these principles, Sir Thomas Eichelbaum said, at para 48:

“It follows, almost inevitably, that ordinarily, a tactical decision by counsel which, in hindsight, ought to have been made differently, will not provide any ground for appeal, any more than if such decision had been made by the defendant personally. Nor will other forms of mere error of judgment.”

39.  As we have said, Mr Ross makes no complaint of flagrant incompetence against trial counsel on this, or any other, issue. Again, his complaint amounts to an assertion that he would not have done as trial counsel did and, as a result, the applicant did not receive a fair trial. With respect, such a proposition does not afford a valid ground of appeal.

40.  Accordingly, we do not accept that there was any need to discharge the jury when the applicant’s subsequent conviction for wounding was revealed, and even less justification where the evidence was introduced by the applicant’s own counsel: see Lam King Yin, at para 28.

41.  However, in our view, it would have been better if the judge had warned the jury in a direction tailored to the circumstances that they could not use the evidence of the subsequent conviction as evidence of propensity.  Indeed, he would have been entirely justified in asking them to completely ignore the conviction.  After all, it took place after the offence with which the jury were concerned and was committed in very different circumstances.  The jury were given no more details of the conviction than was communicated to them in the passage at paragraph 34 above.  In fact, the applicant had only been sentenced to 4 weeks’ imprisonment for the offence.  No such direction was given was given by the judge, but nor was it sought by either counsel at trial.

42.  Notwithstanding the absence of such a direction, we would not have been prepared to allow the appeal on this ground alone.  Mr Davies made a strong appeal in his closing speech for the jury to treat his client as a person of good character with no history of any offence before his arrest for murder[15]. Although the judge gave no direction on the matter, it may well be that he thought the balance would be best left where it was in the wake of defence counsel’s speech.  Indeed, at the end of his speech to the jury, the judge specifically queried whether, in the light of his address, Mr Davies was expecting him to give a good character direction.  Defence counsel said he was not, whereupon the judge said “Anyway, you’ve made your point in your addresses”.

43.  We turn, therefore, to Ground 1 and the complaint that the judge should, on the evidence and particularly in the light of the jury’s question, have given the jury a direction that a verdict of manslaughter by an unlawful and dangerous act was open to them.

44.  We have already recited the evidence relevant to this ground of appeal above[16]. It is instructive to compare that passage with the evidence which the Court in Ho Hoi Shing said called for a direction of manslaughter by an unlawful and dangerous act[17]:

“There was evidence which, if accepted by the jury, was capable of supporting the presence of an intention to kill or cause grievous bodily harm on the part of the appellant.  It is also true that in the appellant’s oral admission under caution, his recorded interviews as well as his testimony in court, the main theme of his defence was that he was provoked by the deceased to lose his self-control and in a moment of fury, he strangled her.  He had used phrases such as “I was unable to cool down”; “I could not control my emotion”; “I entirely lost control of myself”; and “I lost my common sense”.  Such evidence, if accepted, is consistent with and may support the defence of provocation: having the hallmarks of the state of mind of a provoked person.  However, there were in both his evidence-in-chief and cross examination also answers given by him which are not inconsistent with the lack of the requisite intent to kill or cause grievous bodily harm: such as, “I was confused”; “my mind was blank”; “nothing was going through my mind”; “I did not intend to kill her”; and “I did not intend to hurt her”.”

Notwithstanding some similarities between the evidence in the case before us and the evidence referred to above in Ho Hoi Shing, the Court nevertheless went on to caution[18]:

“These answers must of course be examined and considered in the overall context and in the light of the main theme of his defence of provocation. However, in evaluating whether the evidence is sufficient to provide a proper foundation for the alternative verdict of manslaughter by unlawful and dangerous act, the judge must take a view of the evidence most favourable to the accused.”

45.  In our judgment, while the primary defences advanced at trial in the present case were self-defence and provocation, the evidence also called for a direction on manslaughter by an unlawful and dangerous act.  Such a direction was in our view open on the evidence, but it became imperative when the jury asked its two questions.  Plainly, some members of the jury were not happy about aspects of the evidence in respect of murder (the first question), and wanted instruction on whether the verdict should be murder or manslaughter if they found that the applicant intended to attack the deceased, resulting in his death, but did not intend to kill him (the second question).  Mr Tam would say that the jury were not necessarily saying that there was no intent to cause grievous bodily harm.  That is true on the face of the second question.  But, in the circumstances of an attack which led to two men grappling with each other, and in which a knife was somehow produced causing for the most part superficial flesh injuries, we think that the jury should have been given a direction on manslaughter by an unlawful and dangerous act.

46.  In the result, like the Court in Ho Hoi Shing, we cannot say “with any degree of confidence that the evidence of the appellant (was) so incredible, tenuous or uncertain that no reasonable jury could have accepted it, or that no reasonable jury, properly directed, could have reached the alternative of manslaughter by unlawful and dangerous act”[19], had they been offered that option.  In support of that position, we note that the verdict was by a majority of 5 to 2.  We find this ground of appeal made out.

47.  It was for these reasons and on this ground alone that we were obliged to allow the appeal.  Mr Ross said that he felt unable to object to a retrial, in our view rightly.  This was a serious allegation, in which a life had been lost, and which required the true extent of the applicant’s culpability, if any, to be determined properly by a jury in accordance with the available verdicts open to them under the law. Accordingly, we ordered a retrial on a fresh indictment for murder to be filed with the court within 14 days of our decision.  We also ordered the case to be listed within 28 days of our decision and the hearing to be expedited.

48.  Before leaving this case, we have to say, yet again, that the judge was not greatly assisted by either counsel at trial. Neither party thought to discuss the ramifications of the applicant’s evidence with the judge and its effect on the possible verdicts he was to leave to the jury.  Defence counsel ought to have done so in defence of his client on a very serious charge.  However, it was also prosecuting counsel’s duty, as a minister of justice, at least to draw to the judge’s attention that there was, on the evidence, a possible alternative verdict of manslaughter by an unlawful and dangerous act.  If that was not obvious at the conclusion of the evidence, whatever the prosecution believed its case to be, it was certainly obvious following the jury’s questions.

49.  Both counsel at trial were also remiss, with respect, in not appreciating and addressing directly the problems associated with the disclosure of the applicant’s subsequent conviction for wounding, in the context of an indictment for murder.  Any rudimentary examination of the Judicial Institute’s Specimen Directions in Jury Trials should have alerted both counsel to raise the matter with the judge before the summing‑up, so that he could decide how he would deal with the question of character.  Although we have found that the judge appeared to resolve that he would leave the matter where it was, in the light of defence counsel’s closing address, it would have been far better if the matter had been anticipated and directly engaged with the judge prior to closing speeches.