HKSAR v. LEUNG TAK WING

CAC C 479/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 479 OF 2011

(ON APPEAL FROM HCCC NO. 265 OF 2010)

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J U D G M E N T

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Hon Stock Acting CJHC (giving the judgment of the Court):

Introduction

1.  The applicant was charged upon an indictment which alleged that on 4 January 2010 he murdered Hui Ho-ming.  After a trial before D Pang J and a jury he was convicted on 3 November 2011 of that offence and sentenced to life imprisonment.  He now seeks leave to appeal that conviction.

2.  The original and sole ground of appeal was that he did not have a fair trial.  The complaint in that regard is that there was a fundamental inconsistency in the case advanced on his behalf to the jury, of which inconsistency he was not advised, and that in any event the inconsistency ought never to have been permitted, for it materially undermined a key limb of his defence.

3.  His defences as expressly advanced on his behalf by counsel acting for him at trial were that he did not intend to kill or cause really serious bodily harm but also – and this is the key limb referred to – that causation was not proved, he having adduced the evidence of an expert which suggested the possibility that Hui perished from a cause independent of the applicant’s assault upon him.  The inconsistency with that defence is said to be his plea of guilty to unlawful act manslaughter – a plea which was not accepted by the prosecution – the fact of which plea was placed before the jury by an admitted fact.  The argument is that he could not, at one and the same time, admit by his plea to having caused Hui’s death yet ask the jury to acquit of murder and manslaughter on the basis that it was not proved that his conduct had caused Hui’s death.

4.  At the first hearing of this application in October 2012, evidence was taken in relation to the applicant’s complaint of inappropriate advice by counsel but an additional issue was raised at this Court’s behest.  That additional issue centred upon the judge’s direction to the jury that, as a matter of law, the applicant’s assault upon Hui was unlawful.  In order to explore that issue further, the hearing was adjourned part-heard in order to secure relevant transcripts.

The evidence

5.  For the purposes of this application, the evidence may be briefly stated.  They are helpfully summarised in Mr Leung’s written submissions and our account as to the circumstances of the attack itself, is largely taken from that summary.

6.  In December 2009, the applicant was aged 31 years.  Hui was aged 66 years.  Hui was the watchman of a building in Mongkok.  On 9 December 2009, the applicant entered the building with a view to distributing commercial “flyers” but in doing so he triggered the burglar alarm.  He went to leave the building and as or after he did so, he was pursued and stopped by Hui who insisted that he not leave until the police arrived.  An altercation followed.

7.  There were two eyewitnesses to the altercation.  The first, Mr Tong, said that he saw the applicant walk back towards Hui, who was following the applicant outside the building, and push Hui on the shoulders with both hands causing Hui to collide with some scaffolding and to fall onto the pavement.  His evidence was that the applicant then kicked Hui on the head, stamped on his left ear and kicked him four to five times on the head and four to five times on the back.  All that Hui did was to hold up his arms in a protective position.  Tong shouted out and the applicant ran away.

8.  The second eyewitness, another Mr Hui, saw Hui the watchman grab hold of the applicant’s shirt and the applicant then shouted out, swore and pushed Hui the watchman on the chest with both hands and with great force causing Hui to fall backwards into scaffolding. According to this testimony, the applicant then kicked Hui two to three times on his thigh and once or twice to his body but when Hui was trying to get up the applicant took two steps back, dashed forward and kicked Hui once to his head as if taking a football penalty kick.

9.  Hui became unconscious at the scene and was taken to hospital where he died 26 days after the incident.  An autopsy was performed and the pathologist was of the opinion that the cause of death was highly consistent with an acute brain insult and the effects of head trauma due to the incident on 9 December 2009.

10.  The applicant was arrested on 15 December 2009 and agreed to provide an interview which was recorded by video.  There was a second interview on 16 December 2009.  He admitted in the interviews that he had pushed Hui away and that he had kicked him twice to the head.

11.  In his first interview he said that he had intended to distribute leaflets about illicit cigarettes but triggered the burglar alarm and after the burglar alarm had been triggered, Hui grabbed hold of the applicant’s clothing and suggested that the applicant had committed burglary.  The applicant told Hui why in fact he was at the building and showed his open backpack to Hui in an attempt to persuade him he had not committed burglary.  But Hui gave chase and then pulled again at his clothes so the applicant pushed him over and whilst on the floor, Hui was pulling at his leg so he, the applicant, kicked him twice.  He had thought that the conduct of Hui was unjust – “barbaric” was the word he used – in the accusation of burglary and his behaviour had made the applicant angry.  He knew that kicking someone was the wrong thing to do but in the heat of the dispute he had kicked Hui for which reason “I need to undertake the responsibility” though he still thought that Hui’s conduct had been stubborn and he questioned Hui’s right in the circumstances to take hold of him.  

12.  The second interview was largely concerned with exhibits but again he repeated the assertion that he had pushed the deceased when the deceased had taken hold of his shirt or arm and that once the deceased had fallen to the ground, the applicant attempted to swing him off with his leg but failed; “so I kicked him twice” in order to shake him off.

13.  It was put to the pathologist Dr Ying that the cause of death may have been a stroke, unconnected in any material way with the trauma caused to Hui’s head by the applicant’s assault; but Dr Ying did not agree.  A Dr Pang was also called as a prosecution witness: he is a neurosurgeon who attended to Hui in hospital after his admission and prior to his death.  He gave evidence based on his medical notes and other records that his opinion was that bleeding in the left cerebellum was the result of an impact to the left side of the skull and that this bleeding, the material cause of death, was common in head injury cases and that everything witnessed by the eyewitnesses would suffice to cause that bleeding.  He was sure that this had not been a case of a stroke.

14.  The applicant did not himself testify.  Dr Beh, an associate professor in forensic pathology, was called on his behalf and, for reasons it is not necessary in this appeal to traverse, he rejected trauma as a likely cause of the intracranial haemorrhage and said that although haemorrhage strokes are rare, one could not in this case be ruled out as a possibility.  He relied heavily on the fact that there was no break to the skin, no skull fracture and no injury to the dura.

The contending cases

15.  Against that background, the contending cases can readily be stated.

16.  The prosecution case all along was that by delivering kicks to Hui’s head, the applicant clearly intended to cause Hui really serious bodily harm.

17.  The defence case, as expressly advanced, had several limbs:

(1)   that the applicant reacted in the heat of the moment to events that swiftly unfolded and that in the circumstances described by the applicant in his interviews, he had no intention to cause really serious harm;

(2)   that in any event it was not proved by the prosecution that the applicant’s assault upon the watchman had caused his death;

(3)   that, in the alternative to the first and second limbs – albeit mentioned by defence counsel rather in passing as an issue the judge might well leave for the jury’s consideration – the applicant was provoked into losing his self-control; and

(4)   that on any view of the matter, the applicant could not resist a verdict that he was guilty of unlawful wounding.

The manslaughter plea

18.  The plea of guilty to manslaughter and the circumstances in which it came to the attention of the jury must now be addressed. 

19.  It is apparent from the transcript that counsel for the prosecution, Ms Crebbin, was concerned about the apparent inconsistency between the plea and the challenge as to causation.  She suggested that in the light of the plea it was not open to the applicant to raise the issue of causation.  There then followed a discussion between the judge and Ms Crebbin and Mr Haynes.  To cut a relatively long story short, the judge put his understanding of the matter as follows that:

“COURT: Standing back, all he’s saying: ‘I know I did not have the intention to cause GBH or to kill, so I shouldn’t be guilty of murder. I don’t know, but some experts from my side say that there may be a missing link in the causation.’

MR HAYNES: Yes.

COURT: ‘I don’t know.  If that is the case, then I’m not guilty of anything.  I walk free, or perhaps with a conviction of AOABH, that’s all.” [p 336A-D]

The judge said that he believed the defence should be given the leeway it sought. [p 335K]  

20.  On the face of matters thus far, it is not entirely easy to understand how, as a matter of law, leeway came into it, but it is easier to understand from the transcript of counsel’s closing speech how, as a matter of tactics, defence counsel sought to square this circle; a difficulty in which he had been placed by his client, the applicant, because of the applicant’s insistence on pleading guilty to manslaughter and notifying the jury of the fact and also running the causation issue. 

21.  From the transcript of the closing speech by Mr Haynes for the applicant, we see that the way in which he put it to the jury was to the effect that the plea had been tendered not as an admission that the applicant had in fact caused the death of Hui but as no more than an acceptance of moral responsibility, entirely without prejudice to his defence that whatever might be his moral responsibility, causation was not proved.  And that is also how the judge summarised the defence position when he said [p 24] :

“Turning to the defence, they deny the intention to kill. They deny the intention to cause really serious bodily harm. Putting it in everyday language, the defendant was annoyed and agitated by the deceased’s unreasonable persistence. Then, in a regrettable moment, lasting only a few seconds, something very stupid took place that never should have happened. But for pushing and kicking the deceased, the defendant is prepared to accept moral responsibility. That is why he offered to plead guilty to manslaughter, obviously on the basis that he had done a dangerous and unlawful act to the deceased, it is apparent from counsel’s closing speech.

But that being said, it is also the defence position that if in law any reasonable doubt exists as to whether the defendant’s action had caused Mr Hui’s death, then the defendant should be entitled to that benefit and not be held accountable for it one way or the other. Well, that is a fair attitude, and one that is open for the defendant to take.

So how do you approach the matter at hand, members of the jury?  How do you come to any verdict?  My suggestion is that you begin by looking at the most fundamental question.  That is, whether you can be sure that the defendant committed an act or acts which caused Mr Hui’s death.  Why?  Because unless you can be sure of the causation concerned, there would be no murder.  In fact, unless you can be sure of that causation, there would be no manslaughter, whether by dangerous and unlawful act or by provocation, because, like murder, the first and foremost ingredient for any kind of manslaughter is for the defendant to have killed his victim.”

22.  As a matter of law, the applicant’s plea to manslaughter was inconsistent with the challenge to causation.  But that is not what the jury was told.  In order to accommodate the way in which the applicant himself wished to run the case, the trial judge instructed the jury that that was “a fair attitude and one that is open for the defendant to take” making it crystal clear that if causation was not proved they were not to convict the applicant either of murder or of manslaughter.  That reflects the way in which, throughout the trial, the case was presented and conducted both by the prosecution and by the defence.  Prosecuting counsel did not make any play of the plea in her arguments as to causation.  Evidence was presented at length from all the medical witnesses directed solely to the issue of causation.  Given those facts and the directions of the judge, it is not, in our judgment, tenable to contend that by making the jury aware of the plea to manslaughter, the defence in relation to causation was in fact prejudiced.  

23.  The evidence of the applicant before us that he was not advised of the apparent inconsistency between his plea of guilty to manslaughter and the issue of causation was directly contradicted not merely by the testimony of Mr Haynes, which we unhesitatingly accept, but by records kept of advice tendered to the applicant, which records were signed by the applicant.  In those records the applicant expressly instructed those acting for him that he wished the jury to know of his plea to manslaughter because, despite the chance that Dr Beh’s evidence may be accepted by the jury: “I do not want to take the risk of being convicted of murder and given a life imprisonment.”  In other words, the applicant wanted to enhance his chances of a manslaughter verdict for he feared that the causation issue might fail.

24.  Accordingly, the ground originally advanced as the sole ground of this application fails.

Self-defence

25.  However there arose another issue at the court’s own motion; which was adopted by Mr Loughran for the applicant as the second ground of appeal.

26.  The judge correctly directed the jury that, whether for the offence of murder or manslaughter, it was incumbent on the prosecution to prove not only that the applicant committed an act which caused Hui’s death but that that act was unlawful.  In this regard, the judge said this:

“Next I come to the question of unlawful killing. If you once again look at handout No. 1, you will see it is the second question that you have to deal with for murder, assuming for the moment that you have no problem with causation. … .

For this question … I do not think you should have any problem, members of the jury. Despite what counsel said in their closing speeches about Mr Hui perhaps overstepping the line in trying to detain the defendant, the defendant’s act of pushing the defendant’s act of kicking, whether alone or in combination, are clearly excessive and unlawful. There were far less violent yet equally effective ways of extricating himself from Mr Hui’s grip.

So it is irrelevant whether it was the push or whether it was the kicks that caused the injury to Mr Hui’s retromastoid region, although there are suggestions for both.  Since these were both unlawful acts, the push and the kicks, Mr Hui’s death as a result would constitute unlawful killing.  This is a matter of law, and I so direct you.”

27.  The question which arose was whether it was a misdirection for the judge to direct the jury that the applicant’s response to Hui’s conduct was unlawful.  With some encouragement from the Court, Mr Leung for the respondent conceded that it was a misdirection in that the judge had taken the issue to himself as a point of law rather than leaving it as a question of fact for the jury.  But Mr Leung argued that in the circumstances of this case, particularly in the light of the facts and of a concession made by counsel for the applicant, the misdirection mattered not.

28.  On reflection, the question whether there was a misdirection of law is not as straightforward as we first assumed.

29.  The law is this: whether there is evidence which raises a triable issue is a matter of law for the judge; but where there is such evidence, determination of the issue is a question of fact for the jury and not a question of law for the judge.

30.  Self-defence was never raised by counsel for the applicant as a defence to the indictment.  Provocation was raised as a defence. The latter is a defence which by definition imports an assertion of loss of self-control that may well undermine a defence of self-defence.  Further, as we shall see, counsel for the applicant is said to have made a concession in his closing speech that in reacting to Mr Hui’s conduct in taking hold of the applicant, the applicant went too far.  Yet, for whatever reason counsel may choose not to avail his client of a defence for which there is a proper evidential basis, there is imposed on a trial judge a duty to place that defence before the jury for its determination : see Ho Hoi Shing v HKSAR (2008) 11 HCKFAR 354.  Their Lordships in Ho Hoi Shing endorsed the reasoning for that proposition which emerges from R v Coutts [2006] 1 WLR 2154 and Alexander Von Starck v The Queen [2000] 1 WLR 1270.  To illustrate the point which falls for present consideration, it is convenient to cite a passage from Von Starck at 1275:

“The function and responsibility of the judge is greater and more onerous than the function and the responsibility of the counsel appearing for the prosecution and for the defence in a criminal trial. In particular counsel for a defendant may choose to present his case to the jury in the way which he considers best serves the interest of his client. The judge is required to put to the jury for their consideration in a fair and balanced manner the respective contentions which have been presented. But his responsibility does not end there. It is his responsibility not only to see that the trial is conducted with all due regard to the principle of fairness, but to place before the jury all the possible conclusions which may be open to them on the evidence which has been presented in the trial whether or not they have all been canvassed by either of the parties in their submissions. It is the duty of the judge to secure that the overall interests of justice are served in the resolution of the matter and that the jury is enabled to reach a sound conclusion on the facts in light of a complete understanding of the law applicable to them. If the evidence is wholly incredible, or so tenuous or uncertain that no reasonable jury could reasonably accept it, then of course the judge is entitled to put it aside. The threshold of credibility in this context is, as was recognised in Xavier v The State (unreported) 17 December 1998; Appeal No. 59 of 1997, a low one, and, as was also recognised in that case, it would only cause unnecessary confusion to leave to the jury a possibility which can be seen beyond reasonable doubt to be without substance. But if there is evidence on which a jury could reasonably come to a particular conclusion then there can be few circumstances, if any, in which the judge has no duty to put the possibility before the jury. For tactical reasons counsel for a defendant may not wish to enlarge upon, or even to mention, a possible conclusion which the jury would be entitled on the evidence to reach, in the fear that what he might see as a compromise conclusion would detract from a more stark choice between a conviction on a serious charge and an acquittal. But if there is evidence to support such a compromise verdict it is the duty of the judge to explain it to the jury and leave the choice to them.”

31.  That the threshold for the imposition of the duty is low was emphasised by their Lordships in Ho Hoi Shing at para 14:

“Not every possible alternative, however inconsistent with or unsupported by the evidence, has to be placed before the jury. An alternative is to be left to the jury only if there is evidence upon which a reasonable jury might return a verdict on that alternative.”

32.  It is trite law that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another.  Whether there was some evidence that the applicant acted in response to an assault on his person was a matter of law.  It seems clear that there was such evidence.  First, it was common ground that Hui pursued the applicant and took hold of him.  He initially took hold of him by his shirt.  The applicant said that Hui later sought to prevent him from leaving the scene by taking hold of his leg.  Whether, in the context of a purported arrest, he was justified in so doing is, for the moment, not the point.  That the applicant resisted the restraint effected by Hui is also common ground, although the degree of force used in so resisting was not common ground.  Further, we see evidence from the records of interview (which were mixed statements, so that all the assertions therein, even the exculpatory parts, such as they were, constituted admissible evidence) that the applicant was there saying that he kicked Hui in order to free himself of Hui’s grasp.  At its highest in his favour is this assertion in his second interview [ page 783 counter 511]:

“He grabbed hold of me, saying ‘don't run – have made a report to police …’. Well, I mean I swung him off, attempted to swing him off with the leg but failed to swing him off. So I kicked him twice.”

33.  Further, in his earlier interview, when he dealt with the events in question in considerable detail, he said on several occasions that he kicked Hui when Hui was on the ground, pulling at the applicant’s leg. [first interview: counter 213 to 215].

34.  So the next question, still one of law, is whether there was a basis upon which a jury properly directed could reasonably conclude that the force used was reasonable in the circumstances which the applicant believed to exist bearing in mind that he is not expected to weigh to a nicety the exact measure of his necessary defensive reaction (see Palmer v R [1971] AC 814 at 831) and bearing in mind as well that the burden was on the prosecution to show that the degree of force was not in those perceived circumstances, reasonably necessary.  Once such a basis is present, the issue of self-defence is one of fact, to be left to the jury.

35.  The question is not whether the case of reasonable self-defence was weak or whether the jury was more likely than not to conclude, on the applicant’s own account in his interviews, that the degree of force used was clearly excessive on the basis of the facts honestly believed by the applicant.  The question is whether there was some evidential basis, other than a fanciful one, upon which reasonable self-defence was raised.  In this regard, concentrating as we must for present purposes on the applicant’s own account rather than on that of the prosecution witnesses, one is bound to note that in his first interview, the applicant asserted that he did not, at the material time, know whether or not Hui was a watchman.  The theme of his lengthy answers in that interview was that Hui was acting unreasonably since, having asked what the applicant had been doing in the building, whether he had been there to burgle, the applicant told him that he was “just leafleting” [counter 113, p 108] and even opened his backpack for Hui to see that it contained no stolen property; yet Hui pursued him nonetheless and as a result “…then being flurried, I pushed him over.  When lying there he was pulling at my leg.  I then kicked him twice.” [counter 113].  He, the applicant, did not believe that Hui had the right to stop him from leaving [213].  After he had kicked him, Hui let him go [221].  He had kicked him “in the heat of dispute” [529].  The applicant believed that Hui had been acting stubbornly and barbarically [531] and that he, Hui, had no right or power not to let the applicant go [531, p 172].  “I was so flurried that I kicked him carelessly or I intentionally kicked him in the heat of the dispute.” [531 p 173]. And he added that at the material time he did not know what Hui was going to do. [counter 561]. 

36.  It seems to us sufficiently clear that the low threshold endorsed by Ho Hoi Shing is, by this evidence, met.  In the impugned passages in the summing-up, the judge expressly acknowledged submissions that Hui “overstepped the line in trying to detain the defendant” and the judge did not there suggest that there was no evidential basis for that contention.  But he then said that, even if that be so, there were far less violent ways available to the applicant of extricating himself.  That may be correct, but given the applicant’s suggested perception of events, his suggested attempt otherwise to free himself, the absence of fractures to the victim or damage to the dura, the suggestion that the fall against the scaffolding was a material cause of injury, the question whether in fact the response was clearly excessive was in our judgment not one to be withdrawn from the jury.  Furthermore, and significantly, the judge said that even the act of pushing on its own was clearly excessive and therefore unlawful, a proposition which, on the applicant’s account, is at least reasonably debatable and self-evidently an issue appropriate to be left to the jury.  This particular impingement on the jury’s domain (whether the push was an excessive response) is rendered material by what follows in the summing-up, namely, the judge’s direction that “it is irrelevant whether it was the push or whether it was the kicks that caused the injury” which resulted in death.  It seems to us that if it was or may have been the push that caused the injury which resulted in death and the subsequent kicks might be excluded as contributory causes of death, then the issue of self-defence becomes all the more a live issue.

37.  It is not to the point that the applicant’s account in his interviews does not tally with the accounts given by the two eyewitnesses.  Putting aside the fact that the accuracy of their recollections was subject to realistic challenge in certain particulars, the present issue is whether there was an evidential basis, from whatever quarter, which gave rise to the duty in question.  For the reasons which we have provided, we are – subject only to the issue immediately following – of the opinion that there was.

The plea and the concession

38.  The suggestion has been made that by reason of the plea to manslaughter and by reason of a concession made by counsel in the course of his closing submissions, such evidential issue as to self-defence as may have arisen on the face of the interviews was conclusively resolved against the applicant.

39.  The plea of guilty to manslaughter was evidence of an admission by the applicant, not made by him before the jury, that he had responded excessively to Hui’s conduct in taking hold of him.  Yet, in the most peculiar circumstances in which that plea came to be tendered, circumstances explained to the jury as nothing more than an expression of moral responsibility, it would be odd for this Court to construe that plea as evidence conclusively negating a defence of reasonable self-defence.  It would also be inconsistent for this Court so to treat the plea in respect of the present ground of appeal whilst at the same time holding in respect of the first ground that the plea was, as a matter of law, meaningless.

40.  The concession by counsel upon which the respondent relies came in this form during the closing submission by Mr Haynes, for the applicant:

“And he [the applicant] agrees that although obviously he’s entitled to some reasonable reaction to being gripped, he wasn’t really entitled to wound the doorman, so that it is open to you to say not guilty to murder, not guilty to manslaughter, but guilty to wounding, if you think that is established.” [p 242 H – J].

41.  This was, in the context in which it was said, another strange thing, as a matter of law, to say.  What had been conceded in the speech, following upon the applicant’s concessions in his interviews, was that in order to free himself the applicant, wearing training shoes, had delivered two kicks to the face.  Counsel referred to the medical evidence that Hui then suffered two abrasions, one to each side of the face, and a laceration above the eye brow.  “… What is the consequence of the laceration that creates an injury that required stitches?” asked counsel.  “It is a wound in legal terms.  It is called a ‘wound’”.  And because there was in fact a wound, counsel went on to say, it was open to the jury to convict the applicant of wounding.  A little later in his closing submissions, he made much the same point that “if you kick somebody you may cause a laceration which will be a wound … and that’s why the defence can’t argue against the final alternative” of wounding.  It was a strange thing to say because, as a matter of law, it hardly follows that the mere fact of a resulting wound negates reasonable self-defence.

42.  The manner in which the case was conducted on behalf of the applicant presented the judge with a difficult task.  The jury was, for tactical reasons, provided with a basis for the plea of guilty to manslaughter which was untenable at law, though favourable to the applicant; and the jury was also provided by counsel, again apparently for tactical reasons, with a contention that a verdict of wounding was open to them by reason only of the fact that a wound had been occasioned – this, too, was wrong in law and, potentially, enured to the disadvantage of the applicant, as evidenced by the impugned passage in the judge’s summing-up.

Conclusion

43.  We have not found the question of self-defence and the impugned passage easy of resolution; yet, at the end of the day, if one adheres to the fundamental principle emphasised by the Privy Council in Von Starck that a judge is enjoined to ensure that “the jury is enabled to reach a sound conclusion on the facts in light of a complete understanding of the law applicable to them”, the issue of self-defence should have been left to the jury.  There was evidence that the applicant had been pursued after opening his backpack for inspection to reveal nothing untoward in it; that he had been taken hold of and that the push was delivered by the applicant in response and that the kicks to the face were delivered after an attempt to free himself by shaking his leg.  His shoes were soft shoes.  There was no fracture to the skull, no damage to the dura and no break to the skin save at the eyebrow.  The applicant said that he did not know that Hui was a watchman.  All this had the makings of a defence of self-defence.  Its chances of success are another matter: if the gravamen of the testimony of the two eyewitnesses was accepted by the jury, the defence of self-defence would appear doomed to fail; and it may well be that even on the applicant’s own account a jury would conclude that he went too far.  But the matter should have been left to them to decide.  This would be so whatever offence in the category of assault was charged but most particularly so when one contemplates the fact of a murder charge and the dire consequences of a conviction of that charge.  At the least the issue should have been discussed by the judge with counsel, which in the event it was not.

44.  During the hearing we raised with counsel, in connection with the defence of self-defence, whether the defence is available if an accused’s assault is in response to a lawful arrest.  However, neither counsel was able to provide much assistance.  Accordingly, subsequently the court has conducted its own research.  There is authority to the effect that where a police officer used reasonable force in effecting a lawful arrest of the suspect, self-defence is not available to the suspect: see the judgment of the Court of Criminal Appeal of Northern Ireland delivered by Lowry LCJ in R v Browne [1973] NI 96 at 107.  It has been suggested that that proposition is too wide: see Smith and Hogan’s Criminal Law 13^th ed., 393 and R v Burley (unreported, 23 June 2000, All-England Official transcripts; [2000] Crim L R 843) where the Court of Appeal of England and Wales held that it is not the law that where a person is assaulted whilst being arrested by the police he may not plead self-defence.  

45.  In the present case, Mr Hui was not a police officer and there is a question whether Mr Hui was lawfully exercising the power of summary apprehension permitted a citizen by s 101 of the Criminal Procedure Ordinance, Cap 221; for the question may be of what arrestable offence he reasonably suspected the applicant of having committed, given the fact that the applicant had shown his bag and had explained his presence in the building.  But assuming it to have been a lawful arrest in fact, Mr Leung does not suggest, even so, that that deprives the applicant of a self-defence assertion; whether such a defence is available in such circumstances is likely to depend upon the force used by the person exercising the power, upon the accused’s honest belief as to what was happening and upon the nature and degree of his response.

46.  In relation to the judge’s direction that the applicant’s response to Mr Hui’s action was in fact unlawful and to the failure to leave the issue to the jury, the respondent seeks to persuade the Court to apply the proviso to s 83 of the Criminal Procedure Ordinance, but our view is that given that the case was conducted in such an unusual manner, with concessions explained on untenable bases in law, and given the failure to explore the issue of a defence raised on the evidence, this is not an appropriate case for the proviso.

47.  There is one further issue raised which it is not necessary for us to decide.  It arises from the decision of this Court, differently constituted, in HKSAR v Ma Kwok Fai CACC 404 of 2011, 24 July 2012, unreported.  The ground of appeal is that “the learned trial judge erred in failing to direct the jury that they should divide up the series of assaults by the applicant dependent on at what point the fatal impact will blow(s) occurred, and if so, to focus on the applicant’s intention at or by the time he effected such fatal impact or blow(s).  Further or alternatively, that it being unclear which impact or blow(s) caused the death, he erred in failing to direct that if any one impact or blow did not itself suffice to infer intention to do grievous bodily harm, that they should convicted of manslaughter only.”

48.  The facts of Ma Kwok-fai were altogether different in that the applicant gave the victim in that case one punch which caused the victim to fall to the ground whereupon the applicant kicked the deceased whilst he lay there unconscious.  The cause of death, it seems, was the traumatic head injury resulting from the deceased falling.  When addressing the question of the applicant’s intention the judge “did not separately deal with his intention when hitting the deceased on the nose and when kicking him on his waist”.  The Court expressed the view that “the judge should have reminded the jury that the kicks to the deceased’s waist did not kill and directed the jury to consider if a single blow with the fist, which killed the deceased, was inflicted with the intention to cause grievous bodily harm.”  They allowed the appeal and substituted a verdict of manslaughter.  This decision has resulted in an appeal to the Court of Final Appeal, for which leave was given by that Court on 21 March 2013 in part upon certification of the question whether: “In cases of violence should the jury be directed in inferring the necessary intent … to focus on the blow or blows causative of the prohibited outcome … and not on all the circumstances, including all the blows struck or other matters capable of demonstrating the defendant’s intent?”

49.  It would not be appropriate for us to pre-empt the Court’s consideration of that question and it is not in the event necessary for us to adjourn consideration of this appeal to await that Court’s determination.  It seems to us however on the facts of the present case that if the jury were satisfied that it was the fall against the scaffolding which was the sole cause of death (as to which we have not studied the state of the evidence), it was incumbent upon them to consider the intent of the applicant at the time of the push which caused that fall, though incumbent on them also to take into account all the facts including the applicant’s conduct after the push to determine what the intent was at the time of the push.  If, as is probably the case, death was caused by the kicks, then it is the intent at the time of that occurrence which is to be determined, again by reference to the totality of the conduct proved.

50.  For the reasons which we have provided, we grant leave to appeal, treat the hearing of the application as the appeal, allow the appeal and set aside the conviction.  An order for a retrial is not opposed and we order a retrial on a fresh indictment charging the appellant with murder.  The appellant is remanded in custody pending that retrial, which retrial should be expedited.