HKSAR v. LEUNG TAK WING

CACC 411/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 411 OF 2013

(ON APPEAL FROM HCCC NO. 202 OF 2013)

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Hon Lunn VP (giving the Judgment of the Court) :

1. The applicant sought leave to appeal against his conviction by a majority of 6:1 on 11 November 2013 after trial by Line J and a jury of the murder of Mr Hui Ho Ming on 4 January 2010. The trial was a re-trial, his earlier conviction after trial of the murder of Mr Hui having been quashed by this Court on 16 May 2013.[1]

The Trial

2. There was no dispute that in the afternoon of 9 December 2009 the applicant had pushed Mr Hui to the ground in Tung Choi Street, Mongkok and kicked him several times, including his head.  On 4 January 2010 Mr Hui died.  The direct cause of death was bronchopneumonia.  Mr Hui had been in a coma from a few hours after the assault until his death.  The coma was caused by brain damage.  An issue in the case was what had caused the brain damage.  Was it caused by the applicant’s kick (s) to the head of Mr Hui, as the prosecution suggested?  Or, was it caused by an unconnected stroke, as the defence suggested?

Prosecution Case

3. There was no dispute that in the afternoon of 9 December 2009 the applicant went up the stairs from the 2^nd floor to the 3^rd floor of Elaine Court (“the building”) in Tung Choi Street.  He did so with a view to distributing ‘flyers’, promoting the illicit sale of cigarettes.  In doing so, he triggered a burglar alarm.  Mr Hui, the 66 year old watchman of the building, confronted the applicant as he came downstairs by lift and pursued him out of the building, where a dispute ensued between them, witnessed by two men who were called in the prosecution case.

4. Mr Tong said that he was driving his car in Tung Choi Street and was looking for a parking meter to park when he heard shouting and foul language.  He saw an older man, Mr Hui, chasing after a younger man, the applicant, on the pavement.  The applicant turned, walked back and scolded Mr Hui.  Then, the applicant pushed Mr Hui’s shoulder causing Mr. Hui to fall against some scaffolding and then to the pavement.  The applicant kicked Mr Hui on his head four to five times, and delivered the same number of kicks to his back.  Also, he stamped on Mr Hui’s left ear.  Mr Tong did not see Mr Hui do anything to stop the applicant or hear anyone say or shout ‘Stealing’.  For his part, Mr Tong shouted out “Stop hitting!”  The applicant immediately turned and ran off.  Mr Tong gave chase and managed to grab the applicant’s backpack.  Later, Mr Tong identified the applicant at an identification parade.

5. Mr Hui Pui Kit (“Mr PK Hui”) testified that having parked his car, he saw an older man, Mr Hui, holding the back of the applicant’s upper garment.  The applicant scolded Mr Hui using foul language, saying “You allege I stole something, fuck your mother!”  He did not hear Mr Hui say anything.  The applicant used both hands to push Mr Hui’s chest causing him to fall backwards into the scaffolding and then onto the ground. The applicant punched Mr Hui two to three times on the upper body, and kicked his lower body two or three times.  As Mr Hui was crawling, the applicant kicked his head forcefully.  Mr PK Hui shouted “Enough hitting!”  Later, he identified the applicant at an identification parade.

6. Dr Ying, the pathologist who performed an autopsy on Mr Hui testified that, although the direct cause of death was bronchopneumonia, the intervening antecedent cause was intracranial haemorrhage and that the underlying antecedent cause was complications of a head injury.  Dr Ying said that Mr Hui’s comatose state was due to bleeding inside of the skull due to the trauma sustained by Mr Hui on 9 December 2009.  In cross-examination, he denied that the cause of death may have been a stroke, unconnected in any material way with the trauma caused to Mr. Hui’s head by the applicant’s assault.

7. Dr Pang, a neurosurgeon, attended to Mr Hui on his admission to hospital.  From his examination and from various tests performed on Mr Hui he was satisfied that the injury to Mr Hui’s brain was caused by a trauma and not by a stroke.

8. The prosecution relied on the inculpatory statements that the applicant had made following his arrest on 15 December 2009 and after he had been cautioned for wounding Mr Hui and on his answers in two video recorded interviews conducted of him on 16 December 2009.

Defence case

9. Although the applicant did not avail himself of the right to give evidence, he did call Dr Beh, a forensic pathologist, to testify in the defence case.  Also, he relied on the exculpatory statements that he had made in his video records of interview.  It was the defence case that the applicant had only used necessary and reasonable force to free himself when he was grabbed hold by Mr Hui.   The applicant had no intention to cause him grievous bodily harm.

10. Dr Beh testified that the direct cause of Mr Hui’s death was bronchopneumonia which had been caused by an intracranial haemorrhage.  The intracranial haemorrhage had not been caused by trauma.  Rather, it was caused by Mr Hui suffering a stroke whilst he was in hospital. 

Grounds of appeal against conviction

11. Mr McGowan submitted on behalf of the applicant that the judge had misdirected the jury in respect of the issue of self-defence, namely the use of reasonable force by the applicant to free himself from unlawful detention by Mr Hui.  It was contended that the judge had erred in directing the jury that the “nub of the matter can be encapsulated very shortly” and that, after they had decided what the applicant did :[2]

“ then ask if it was necessary and reasonable, judging on the basis of what he honestly believed.”

12. It was submitted that the error lay in the judge’s failure to direct the jury that they were to approach the matter on the basis of what the applicant “honestly believed, or may have honestly believed”.  Although it was accepted that on a number of occasions prior to the impugned direction the judge had directed the jury correctly in that way, it was contended that the significance of the misdirection lay in the fact that it was the final direction given by the judge on the issue, which he described as the “nub” of the issue.

13. Further, it was suggested that the judge’s error was compounded by the failure of the judge to provide the jury with written directions in respect of the issue of self-defence, in contrast to the written directions provided in respect of other matters, including provocation.

14. Then, it was contended that the judge had failed to provide the jury with a balanced summing up, in particular by reminding them in terms of the out-of-court statements of the applicant relevant to the issues of self-defence and provocation.  Whilst it was acknowledged that the judge had reminded the jury of some of the material relevant to that issue, it was contended that he ought to have reminded the jury of much more of that material.

15. Finally, it was contended that the judge had erred in directing the jury in respect of the alternative verdict of manslaughter, either by provocation or on the basis of an unlawful and dangerous act, that :[3]

“ If you were to return a verdict of guilty to manslaughter, it must be the result of at least five of you agreeing it was either by reason of provocation or a dangerous and an unlawful act. In other words, if three of you thought he was guilty because he was provoked and two of you thought he was guilty because of a dangerous and an unlawful act, that would not do.”

16. It was submitted that the terms of the direction had the potential of preventing the jury from returning a verdict of manslaughter, even if five of the jurors were satisfied that was the correct verdict, if they were split, as the judge had described, as to the basis of that verdict, namely provocation or an unlawful and dangerous act.

A CONSIDERATION OF THE SUBMISSIONS

Self-defence

17. Having directed the jury that a person who acts in lawful self-defence is entitled to be found not guilty, the judge went on to describe how that principle applied in the facts of the instant case :[4]

“ It is also the case that a person is entitled to use reasonable force to free himself from unlawful detention, or what he believes to be unlawful detention. This is a matter of fact that arises for your consideration in this case, and it is convenient to refer to this act as self-defence for the purpose of giving you directions.”

18. Then, having directed the jury that it was for the prosecution to prove that the applicant was not acting in self-defence, the judge went on to say :[5]

“ What does acting in lawful self-defence mean? The law is that a person only acts in lawful self-defence if, in all the circumstances, he honestly believes it is necessary for him to defend himself or free himself and the amount of force which he uses in doing so is reasonable.

So there are two main questions for you to answer. One, did the defendant honestly believe, or may he have honestly believed that it was necessary to use force to defend or free himself? A belief may be honest even if it is based, either reasonably or unreasonably on a mistake. Was this a case where the force used was unnecessary, as the defendant must have known that he could deal with the situation without resorting to violence?

If the prosecution has made you sure that the defendant did not use violence on Mr Hui in the honest belief that it was necessary to defend or release himself, then self-defence simply does not arise in the case. But if you decide that he was, or may have been, acting in that belief, then you must go on to answer the second question.

The second question is this : taking the circumstances as the defendant honestly believed them to be, was the amount of force which he used reasonable?

     The law is that force used in self-defence is unreasonable and unlawful if it is out of proportion to the situation, or if it is in excess of what is really required of the defendant to defend himself or set himself free.  For example, if the defendant began by defending himself or using such force as was necessary to remove a restraining hand upon him but then totally overreacted, turning an act of self-defence into a punitive attack and caused injury or death in the course of that attack, that would be unlawful.”  [Italics added.]

19. Having enjoined the jury to use their common sense in considering all the circumstances in determining whether the force used by the defendant was reasonable, the judge said:[6]

“ Also, in considering these matters, judge what the defendant did against the background of what he honestly believed the situation to be. So when you judge what was necessary or reasonable for him to do, you can consider what he knew, or must have known, of the situation. You can look at why he may have chosen force and the degree of that force. Had he crossed the chain barrier with its warning in order to snoop around and see if there was anything to steal? Was he minded to get away at all costs to avoid being in trouble for promoting the sale of illicit cigarettes with his leaflets? Did he think the police were coming? If so, how long would he think they would take to arrive? Did he honestly think he had done nothing wrong and was entitled to act as you find he did? These are the sort of questions you will want to ask yourself, perhaps.

 You should also bear in mind that a person who is defending or freeing himself, cannot be expected, in the heat of the moment, to weigh precisely the exact amount of defensive or evasive action which is necessary.  The more serious the attack or detention upon him, the more difficult his situation would be.  If, in your judgment, the defendant believed, or may have honestly believed that he had to defend or free himself and he did no more than he honestly and instinctively thought was necessary to do, that would be very strong evidence that the amount of force used by him was reasonable.”

20. Of the issue of the arrest or restraint of the applicant by Mr Hui, the judge said :[7]

“ ... you must look at the situation in terms of what the defendant honestly believed the situation to be. Even if the arrest was in fact lawful, if the defendant honestly believed it was unlawful, he could use such force as was necessary and reasonable in the circumstances to stop it. Your assessment of how the defendant responded in terms of necessity and reasonableness is the crucial question here. One factor in your consideration of it is what the defendant perceived was the nature and justification of Mr Hui’s conduct that gave rise to his use of force.”

21. It was in that context, that the judge gave the impugned direction to the jury :[8]

“ I regret that my directions on this aspect of unlawfulness have been so long, especially when I can say to you that you may think the nub of the matter can be encapsulated very shortly by just saying this : you should decide what the defendant did and then ask if it was necessary and reasonable, judging on the basis of what he honestly believed.”

22. It is clear that the judge used Specimen Direction 48 of the Specimen Directions issued by the Judicial Institute as the template for his directions to the jury on the issue of self-defence, adopting and adapting those parts relevant to the issues in the case, together with references to the relevant evidence.  Part of Specimen Direction 48 is in the following terms :

“ As it is the prosecution’s duty to prove the case against the defendant, it is for the prosecution to make you sure that he was not acting in lawful self defence. The defendant does not have to prove that he was.

What does acting in lawful self defence mean? The law is that a person only acts in lawful self defence if in all the circumstances he honestly believes it is necessary for him to defend himself [or e.g. a member of his family] and the amount of force which he uses in doing so is reasonable. So there are two main questions for you to answer :

1. Did the defendant honestly believe or may he have honestly believed that it was necessary to defend himself?

[Where appropriate; …]

  If the prosecution has made you sure that the defendant did not [e.g. strike X] in the honest belief that it was necessary to defend himself, then self defence simply does not arise in this case [and he is ‘Guilty’].  But if you decide that he was or may have been acting in that belief, then you must go on to answer the second question :

2. Taking the circumstances as the defendant honestly believed them to be, was the amount of force which he used reasonable?”  [Italics added.]

23. Adapting the Specimen Direction to the issues in the case, the judge added the phrase “or free himself” so that his direction to the jury was “he honestly believes it is necessary for him to defend himself or free himself” in the second paragraph of the text quoted above and “honestly believe or may have honestly believed that it was necessary to defend himself or free himself” in the text of Question 1.

24. The issue of self-defence was addressed in the advice of the Privy Council in Beckford v The Queen [9], cited with approval by this Court in The Queen v Man Wai Keung[10]. In the former case, Lord Griffiths said that their Lordships approved a passage in the judgment of Lord Lane CJ in R v Williams (Gladstone) [11] in the judgment of the Court of Appeal of England and Wales, including :[12]

“ the jury should be directed first of all that the prosecution have the burden or duty of proving the unlawfulness of the defendant’s actions …

In a case of self-defence, where self-defence or the prevention of crime is concerned, if the jury came to the conclusion that the defendant believed, or may have believed that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime, then the prosecution have not proved their case.”

25. It is to be noted that at the conclusion of their advice in Beckford v The Queen, in answering the questions posed of them, their Lordships said :

“ …the test to be applied for self defence is 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.”

26. It is clear that the reference to what “the defendant believed or may have believed” was made in the context of the burden of the prosecution to prove the unlawfulness of the defendant’s actions.  Obviously, if the jury was satisfied that the defendant may have had the requisite belief then the prosecution had failed to prove the unlawfulness of the defendant’s actions. 

27. The second question, to which the judge’s comment was in fact directed, requires an assessment by the jury of the reasonableness of the defendant’s response.  But this assessment must be made by reference to “the circumstances as the defendant honestly believed them to be”.  This requires the jury to make a finding of fact.  In order to make this assessment the jury is concerned not with what the defendant may have honestly believed those circumstances to be but rather with what they find he actually believed them to be.

28. Viewed in that way, the statement that the test is what the defendant “honestly believed” is in no way inconsistent with the statement that the prosecution would not have proved their case if the jury concluded that the “defendant believed, or may have believed, that he was being attacked or that a crime has been committed, and that force was necessary to protect himself or to prevent the crime”.

29. We are satisfied that this ground of appeal fails.

Unbalanced summing up

30. By separate grounds of appeal, it was contended on behalf of the applicant that the judge had failed to give the jury sufficient reminders of his out-of-court assertions, as to his belief of his unlawful restraint by Mr Hui and those relevant to the issue of provocation, required in a balanced summing up. 

The Law

31. There is no dispute that in a summing up a judge is under a duty to give the jury a balanced account and analysis of the cases for the parties.[13]  A defendant is entitled to have his case presented fairly to the jury by the judge.[14]  In a case such as that of the applicant, where the applicant had not given evidence but relies on his out-of-court statements in the defence case, it is the duty of the judge to identify the evidence there contained which supports defences available to the applicant.  So long as that duty is discharged, it matters not how the objective is achieved.

32. In the judgment of the Court of Appeal of England and Wales in R v Soames [15] the Vice President Rose LJ cited with approval the judgment of the Court in R v Curtin [16], in which the issue of the ambit of the duty of a judge in those circumstances was addressed :

“ … it is a judge’s duty, in summing up to a jury to give directions about the relevant law, to refer to the salient pieces of evidence, to identify and focus attention upon the issues, and in each of those respects to do so as succinctly as the case permits. It follows that as part of this duty a judge must identify the defence. The way in which he does so will necessarily depend on all the circumstances of the particular case. …

When, as in the present case, the defendant was interviewed at length but did not give evidence, the judge, as in every other case, has to decide how fairly and conveniently he should place the defence case before the jury. When, as here, the interviews were long, their terms had been rehearsed in evidence, reference to important parts had already no doubt been made more than once by counsel, and the jury had full transcripts of everything that had been said, it was not necessarily inappropriate in itself for the judge to deal with the interviews by specifically inviting the jury’s attention to relevant passages by reference to page numbers.

Approaching the present case in that way, it seems to us that, in specifically inviting the jury to read the whole of the summary of the interview and then, as it seems to us he did, referring them specifically to the salient part of the interview in relation to counts 2 and 3, he was doing all that he properly could be expected to do in this case in placing before the jury that which was advanced as giving rise to a defence to each of these counts.”

33. In the judgment of this Court in HKSAR v Hong Tsz Yin ^[17]  in which the appellant’s conviction for murder was quashed, in part on the basis that the judge had failed to sum up the defence case adequately, Stock VP cited R v Soames with approval.  In that case, the applicant did not testify at trial, but had given lengthy out-of-court statements to the police.  Of those explanations, Stock VP said :[18]

“ They constituted not merely a denial of an intention to kill either victim but, importantly, his exculpatory explanations for those acts relied upon by the prosecution as evidencing an intention to kill; exculpatory in the sense that he was saying that the acts were consistent with other intentions.”

34. Of the ambit of the directions required of the judge, he went on to say :[19]

“ In her summing-up, the judge made frequent reference to the fact that the defence case was that there was no intention to kill or cause serious harm. To this extent, the nature and extent of the defence was made clear to the jury.

But that, with respect, was, in the circumstances of this case, not enough.

What the learned judge did not do was to summarise what it was that the applicant asserted in his interviews as to what his intentions in fact were and the basis upon which he said that his conduct was consistent with absence of an intention to kill.  Nothing elaborate was needed; but a succinct analysis of the thread of the interviews insofar as they sought to render his actions consistent with his suggested lack of relevant intent was called for and, no matter how implausible it might be said his explanations were, it is not acceptable in a criminal trial – let alone a murder trial – where somewhat complex explanations are advanced by way of defence, to say no more in this regard than was said by the judge in this case and to which Hartmann JA refers ...; effectively, to leave them simply to look at the records of interview.  The result was a failure to draw to their attention the essence of the applicant’s explanations for his conduct and how it was said that those explanations went to his defence.”

35. The context in which the judge came to address the assertions of the applicant in his out-of-court statements was that in the course of the trial, after they had been provided with copies of a transcript and a translation of the transcript, the two video records of interview had been played in their entirety to the jury in court.  That was done during the testimony of the two respective officers who had conducted those interviews.  It is apparent from the transcript of the closing speech of Mr Loughran, counsel for the applicant, that the jury was taken to a large number of passages of those video recorded interviews, many of which were quoted in terms to them whilst others were summarized.  Although there is no transcript of the closing speech of counsel for the prosecution, no doubt she embarked on a similar exercise.  Finally, in his closing remarks to the jury in his summing up the judge informed them that there were facilities available to them to view the two video recorded interviews of the applicant during their retirement.[20]

36. In his summing up, the judge told the jury that, in respect of the applicant’s out-of-court statements, he proposed to summarise the thrust of what the applicant had asserted and to “draw attention to some matters that may be of interest”.  However, having reminded the jury that they were possessed of the same transcript, he directed them that they were not to be “over influenced by my summary which inevitably involves … selection.” [21]

37. Of the issue of the applicant’s belief that the restraint of him by Mr Hui was unlawful, the judge reminded the jury that in response to the sounding of the burglar alarm the applicant said that :[22]

“ …. he took the lift down to the ground floor and was challenged by Mr Hui, the watchman; that he apologised and explained what had happened; that he opened his backpack for inspection; that he was unable to convince Mr Hui who demanded that he stay and wait for the police; that he declined to do so and followed other people out of the building; that he was chased after by Mr Hui who kept shouting at him to stop and who grabbed at his clothes; that feeling flurried and just wanting to go, he pushed Mr Hui to the ground and that Mr Hui still hung onto his legs or trousers; that he kicked him twice before moving away and then running when chased.

 Concerning how he saw the matter, he variously said that he found Mr Hui barbaric and uncivilised; that he did not believe the watchman had the right to stop him from leaving; that he ran away because he was chased by two strangers; it was all a misunderstanding; that both parties were wrong in some way; that he left because he had the cigarette leaflets with him and was afraid that he might get into trouble; that he thought Mr Hui had already called the police because, from beginning to end, he was holding his telephone and he knew that his leaflets were something unlawful.”  [Italics added.]

38. Earlier in the summing up, the judge had reminded the jury of the applicant’s out-of-court account of his meeting the watchman before he left the building :

“ In his interviews, he related that the watchman stopped him and grabbed his arm and that he apologised and explained himself and opened his backpack to show him the contents before leaving the building.” ^[23]

39. The judge did so in the context of the available CCTV film of the lift, corridor and exit of the building.  He reminded the jury that the various still photographs extracted from that film encompassed a six second time period at 3:45 pm and that the prosecution made the point that the film did not show what the applicant claimed had happened.  The judge said that Mr Loughran was correct to say that there were gaps in the film, in the sense that the applicant was not seen in the film all the time, there being a gap after he left the lift and was depicted in the corridor.  He invited the jury to note that the applicant was depicted at 3:45:23 in the lift; at 3:45:25 in the corridor walking to the door and at 3:45:29 arriving at the exit.  In that context, he suggested that there was about three seconds for the events the applicant described to have happened, namely “apologising and looking in his backpack and the like.”[24]

40. Of the defendant’s assertions in his out-of-court statements as to his response to that conduct, the judge said :[25]

“ Concerning what he said about his own state of mind, he said variously that he was angry, flurried, panicky, annoyed and that he did not know what he himself was doing.”

41. Obviously, in the passages set out above the judge, as he told the jury, was summarising the assertions made by the applicant that were relevant to the available defences.  He told the jury that was what he was doing, but emphasised to them that they were to have regard to the whole of the out-of-court statements.  His summary was succinct and without any quotations of specific passages or the provision of references to the counters in the transcript of the passages which he had summarized.

42. Then, the judge moved to taking the jury to specific passages in the transcript, inviting them to follow in their own copies of the transcript :[26]

“ Let me now just take you to some parts of the interview that deal with kicking, and I draw these passages to your attention because you may think they are important when it comes to considering the question of whether any kick delivered by the defendant was lawful or unlawful, bearing in mind the directions I have given you on the topic. I do not claim to have covered everything; this is a summary and I draw your attention to the parts that I think might help you on this particular topic. But I repeat, follow your own judgment.” [Italics added.]

43. First, he took them to selected passages in the English translation of the transcript of the first video recorded interview :[27]

“ Well, being flurried, maybe, well, I pushed him over, you know, well, pushed him over. When lying there, he was pulling at my leg. I then kicked him twice, you know. Well, then a guy surnamed Chiu and another male came out and gave chase to me.” [Counter 113]

44. Next, the judge quoted from a series of questions and answers from counter 214 to the first sentence of counter 221 :

“ Hey, earlier you said he was pulling at you, he was pulling at your leg. Well, what did you do next?

He was pulling at my leg so I kicked him.

Kicked him. Where on him did you kick? His head?

His head, yes.

How many times did you kick?

As far as I can remember, probably once or twice.”

45. Of that interchange, the judge said :[28]

“ So you have got there in that answer, “He was pulling at my leg, so I kicked him,” some connection in what he is saying there - it is up to you to consider the matter - between the pulling and the delivery of kicking.”

46. Then, the judge quoted passages from an interchange with the applicant beginning at counter 510, which he invited the jury to consider as an important part, because it addressed “the issue, or an aspect of it” :[29]

“ Well, now that you said you had pushed the watchman over, well, you could go away after you had pushed him over. How come you still kicked him?

Because at that time he was pulling at me.

Pulling at you. You could just thing him away...” Shake him off - “...and you didn’t have to kick him.”

And the answer was this :

“The moment he pulled at me, I mean, how to say, the moment he pulled at my trouser leg, well, I kicked him twice, once I was free of him. Well, I intended to kick him twice and leave because I didn’t, you know, how to say, didn’t have the time to leave. I felt that because at that time he was -- I felt that he was -- that behaviour can simply be called barbaric. I mean, already explained to you but you still ignored and said ‘You have gone up there to burgle, I now call the police to have you arrested, don’t go away’. He even, I mean, caught me with his hand so I started to feel flurried and get angry.

You mean at that time, his behaviour made you a bit angry, is that what you mean?

Yes.

That’s why you kicked him.

Yes.

Anything else you need to add?

No.”

47. Finally, the judge referred to part of the applicant’s answer at counter 531 :[30]

“ But I’m willing to take the responsibility. Hey, it’s true that I had kicked someone. I made a move, kicked and injured. Maybe at that time I was so flurried that I kicked him carelessly or I intentionally kicked him in the heat of the dispute. Hey, I undertake this responsibility but because I was walking with my back to him, in fact, from beginning to end, I never thought about going back to hit him or what. The moment I turned and walked, he still gave chase to me and then cried out, Mr Cheung, you know. In fact, hey, I went back and pushed him because, at that time, he was still giving chase to me, in fact pushed him over. Well, after that, struggling, struggling, well, how to say, during the struggle, he pulled at my trouser leg. Well, being free of him, you know, I kicked once, twice, you know, after that I didn’t go back again to hit him.”

48. Then, the judge explained the reason for his selection of the quotations he had recited to the jury :[31] 

“ I am just identifying the parts of the interview for you where he talks about the relationship between having his leg grabbed and the delivery of the kicks and whether the kick was reasonable, necessary force to free himself. And you will see, in those last two answers, he actually says that the kicks were once he had freed himself.”

49. Having told the jury that they must also take into account what the applicant had said in the second video recorded interview, the judge referred to statements made by the applicant in three passages :

“ I turned round and pushed him, pushed him. He fell against the scaffolding there. Well, afterwards he then -- then pulled the bottom of my pants. Well, I kicked him once or twice and then turned around to walk away slowly.” [Counter 421]

“ He grabbed hold of me -- grabbed hold of me, saying ‘Don’t run. Made a report to the police, made a report to the 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.” [Counter 511]

50. Of those answers, the judge said :[32]

“ And you will see there that the kick is being related to freeing himself. So it is up to you what you make of all this;”

Finally, he reminded them of counter 515:

“I used my left leg with an intention of loosing his grip but failed. I then gave him two kicks with my right foot.”

51. Then, the judge reminded the jury again that although he had taken them to selected passages they were to “take into account all that he said in the two interviews.”[33]

52. At the end of the judge’s summing up, Mr Loughran, complained :[34]

“ You did not identify any of the factors in the video-recorded interview going to whether or not the defendant lost self-control and ...

COURT : I dealt with his state of mind by saying he was -- in terms, “I was angry, flurried, panicky, annoyed” and didn’t know what he was doing.

MR LOUGHRAN : Yes. In the context of dealing with the unlawfulness aspect, not with the...

COURT : No, that was in the context of summing-up what he’d said in it.

MR LOUGHRAN : Well, anyway, and secondly, identifying the factors...

COURT : Well, why do you say that was related to unlawfulness? The unlawfulness which I said, that was about the kicking.

MR LOUGHRAN : In terms of provocation, in the context of the summing-up, nothing was raised on that issue going specifically and expressly to the point of provocation, that is nothing in the VRI going to whether he lost self-control, and (b) nothing going to the factors that would go to the reaction of a person similarly placed and have the powers of self-control of an ordinary man. Both those factors in the context of provocation, both those aspects were not elaborated and identified.

COURT : I don’t understand the second point.

…

COURT : ...whether or not he lost his self-control is a question of fact for them and that depends on his descriptions in part of his own state of mind. So I would’ve thought I’d covered that part of it by reminding them that he’d said he was angry, flurried, panicky, etc. What’s the second part you wanted me to deal with?

MR LOUGHRAN :  The second part on provocation, the judge should identify for the jury the factors going to his reaction; in other words, as the Lung decision, the subjective part of the objective test.   In other words, for example, by the defendant’s feeling that Mr Hui grabbed him, falsely accused him of burglary, pursued him, tried to detain him, grabbed his legs outside.  The defendant’s perception that this was unreasonable...  [Italics added.]

COURT : But haven’t I summed up the thrust of his case and then dealt specifically with his state of mind?

MR LOUGHRAN : None of that has been tied into the provocation defence.

COURT : What do you mean by ‘tied in’? Do you want me to have said, “You can bear those matters in mind when it comes to considering provocation”? But they must know that, mustn’t they? That’s the whole point of it.”

53. In the result, the judge gave no further directions to the jury.

54. In his summing up, the judge gave his oral directions in law as to murder, manslaughter by a dangerous and unlawful act and provocation in conjunction with written directions provided to the jury in the same terms.  In those circumstances, in which the oral directions mirrored the written directions, the judge made no reference at that time to the facts relevant to those issues.  The directions were confined to issues of law only. By contrast, when he gave directions in respect of self-defence, in respect of which issue the jury were not provided with written directions, the judge combined his directions in law with references to the relevant evidence.[35]

55. In his review of the assertions made by the applicant in his out-of-court statements, the judge did not suggest to the jury in terms that any particular assertion was relevant to any of the issues arising in respect of provocation.  It is to be noted that Specimen Direction 51[36], in addressing the first limb of provocation, namely whether the defendant was provoked to lose his self-control by things that had been said and/or done, clearly suggests that reference be made to the relevant evidence :

“ [Here, identify the things allegedly said and/or done to constitute the provocation - including where appropriate cumulative provocation and, unless it is obvious, the evidence pointing to a loss of self-control.]”

56. Whilst it would have been more desirable if, at the time of his directions in law, the judge had specifically identified to the jury the evidence relevant to the separate issues arising in provocation, we are satisfied that there is force in his rejoinder to counsel, when the matter was raised at the conclusion of the summing up, to the effect that the relevance of that evidence to the issue of provocation was obvious.

57. As noted earlier, the judge sought to summarise the applicant’s assertions in the first video record of interview of his encounter with Mr Hui and of what the latter said and did towards him :[37]

“ that he apologised and explained what had happened; that he opened his backpack for inspection; that he was unable to convince Mr Hui who demanded that he stay and wait for the police; but he declined to do so and followed other people out of the building;”

58. Subsequently, the judge reminded the jury of the applicant’s assertions of Mr Hui’s conduct that led him to become angry :[38]

“ A : … I felt that he was -- that behaviour can simply be called ‘barbaric’, er- I mean, (I) already explained to you, but you still, er- i-ignored and --, er- said, ‘You have gone up there to burgle. er- I now call the police to have you arrested, er- don’t you go away.’ Er- he even, I mean, caught me with his hand, so I started to feel flurried and get angry.

Q : You mean, at that time, his behaviour made you a bit angry. Is that what you mean?

A : Yes.

Q : That’s why you, er- kicked him?

A : Yes.”

59. Having summarised the applicant’s assertions in his video record of interview in respect of his “own state of mind” as being “angry, flurried, panicky, annoyed and that he did not know what he himself was doing”, the judge reminded the jury of some of those assertions specifically.  As noted above, in reminding them of what the applicant had said at counter 513, the judge told them that sense that he “started to feel flurried and get angry”.  Earlier, he had reminded the jury of the applicant’s assertion of the causal connection between that state of mind and his own conduct, telling them that that at counter 113 the applicant said :[39]

“ Well, being flurried, maybe, well, I pushed him over, you know, well, pushed him over.”

60. In the same context, he reminded them that at counter 531 that the applicant said :

“ Hey it’s true that I kick someone. I made a move, kicked and injured. Maybe that time I was so flurried that I kicked him carelessly or I intentionally kicked him in the heat of the dispute.”

61. The judge’s statement in his summary of the assertions made by the applicant as to his state of mind, namely that “… he did not know what he thought was doing” appears to be a reference to these several counters beginning at counter 561.  In answer to the question, “How angry were you?  Were you very angry?” the applicant said “I started to have the feeling of not knowing what you were going to do, started to feel a bit upset.”  When asked if he felt that he was “getting mad” the applicant said, “No I mean ...  I started to feel like ...  kind of, not knowing what to do.”  In this instance, the judge did not quote from those passages.  However, counsel for the applicant did so in his closing speech at some length.[40]

62. We are satisfied that the judge’s reminder to the jury, by summary and direct quotations, of the thrust of the applicant’s out-of-court assertions relevant to the issues of self-defence and provocation was helpful to the jury and sufficiently set out the defence case.  The observations of Roberts CJ in the judgment of this Court in R v Cheng Pak Chang [41] are apposite :

“ It must not be assumed that the jury is composed of idiots. They have heard the evidence, and have been told that they are the judges of fact. If they have been correctly directed as to the law, the judge is not obliged to remind them of every piece of evidence which is capable of an interpretation favourable to the defence.”

63. We are satisfied that there is no merit in this ground of appeal.

Written directions to the jury

64. Although the judge gave written directions in respect of the law relating to murder, manslaughter by a dangerous and unlawful act and provocation he did not provide them with written directions in respect of self-defence.  Uniquely, in the experience of this Court the judge provided those written directions to the jury at the commencement of the trial, namely on 1 November 2013 immediately after the indictment was read in open court following the empanelment of the jury and before the opening speech of the prosecution. In the course of the closing speech of counsel for the applicant, the judge withdrew the written submission in respect of murder and replaced it with a fresh direction. 

65. Before the written directions were handed to the jury at the outset of the trial, in the course of discussions with counsel for the applicant, the judge answered in the affirmative his enquiry as to whether or not the jury would be “given the handouts on these other issues that may arise, such as, loosely termed “self-defence”.”  The judge added, in respect of directions as to self-defence, “… if it comes out in the trial that it’s a live issue then there will be a proper full direction on it which they will have in writing too.” [42]  In providing the jury with written directions on those three issues at the commencement of the trial the judge told the jury that he was providing a “very basic definition”, acknowledging that there would be other issues arising in the trial.[43]

66. On 6 November 2013, the judge provided counsel, in the absence of the jury, with a draft written direction in respect of self-defence, headed “Unlawful”, informing them that he had not decided as yet whether or not to provide it to the jury.[44]  Counsel for the applicant objected to it being provided to the jury on the basis that, in addition to legal directions, it contained “factual argument [45]”. He did so on the basis of the judgment of the majority in this Court in HKSAR v Nguyen Anh Nga [46]in which it was suggested that “as a general rule it be avoided”.[47]  In response, the judge said “I think you might be right, actually.  If we just leave them with murder, manslaughter and provocation, although I don’t want to.. because there’s a lot other than that ...” [48]

67. On 7 November 2013 the judge provided counsel with what appears to have been another draft of the written directions in respect of self-defence.  In the course of the discussion that ensued between counsel for the applicant and the judge as to the contents of the directions the latter maintained his objections to the written directions going to the jury on the basis that it still contained references to factual matters in addition to legal directions.

68. At the conclusion of his directions given by reference to the written directions, the judge told the jury :[49]

“ Let me just add this, that because part of the summing-up has been given to you in writing and the rest of it is orally delivered, it does not mean the writing is any more important, but those are technical matters, they are hard to carry in your head; that is why I have given you them on paper. But it does not mean they are any more or less important than the other matters I deal with.” [50]

69. In the event, the judge did not provide the jury with any written directions in respect of self-defence.  For his part, counsel for the applicant did not raise the absence of any such written directions with the judge before or after the summing up.  The judge did not give the jury written directions in respect of the issues of either causation or intention, although he dealt with them at some length orally.

70. We are satisfied that the judge was entitled to deal with the matter as he did and that there is no merit in this ground of appeal.

Directions as to the necessary majority agreement for a verdict of manslaughter on either the basis of provocation or an unlawful and dangerous act

71. Prior to giving the jury directions as to the requisite majority in respect of the alternative bases on which they might return a verdict of manslaughter, the judge addressed them orally on what he described as the ‘Steps taken towards returning verdicts’.  In doing so, he provided the jury with an untitled written document that set out in the numerical order the sequence of the steps the judge suggested were to be taken by the jury in returning verdicts.  The written document was the basis of his oral directions.[51]

72. The first three steps addressed the issue of causation.  Then, the judge addressed the issue of self-defence :

“ 4. If the prosecution has proved that the defendant’s act or acts caused the death, then go on to consider if the prosecution has proved that the defendant acted unlawfully. This involves the prosecution proving that the defendant had not acted in self-defence himself or to secure his freedom from detention in a way that was necessary and reasonable.

  5. If the prosecution fail to prove that the defendant was acting unlawfully, then your verdicts will be not guilty to murder, manslaughter, wounding with intent to cause grievous bodily harm and wounding.  In other words, not guilty to everything.”

73. Next, the judge addressed the issue of the requisite specific intention for murder and the issue of provocation :

“ 6. If the prosecution do prove that the defendant acted unlawfully, then go on to consider if they have proved that when the defendant did the unlawful act that caused the death, he intended to cause Mr Hui really serious harm. If you are sure that he did, then your verdict will be guilty of murder, subject to provocation. If you are sure that the intention to cause really serious harm has been proved along with causation and unlawful act or acts, consider whether the defendant was provoked following the written definition that I have already given you and that you have.

If the prosecution fail to disprove provocation, then your verdict will be not guilty of murder but guilty of manslaughter by reason of provocation and you would not be asked for any verdict on wounding with intent, or wounding.

If the prosecution do prove that there was no provocation and you are sure that they have proved each element in the definition of murder that you have, then your verdict to the count of murder would be guilty? If that were the case, you would not be asked for a verdict in respect of any other offence.

If you are not sure that the prosecution have proved that the defendant intended to cause really serious harm to Mr Hui, you would return a verdict of not guilty to murder and would go on to consider the alternative to manslaughter.”

74. Then, the judge addressed the issue of the alternative form of manslaughter, namely by an unlawful and dangerous act :

“ If you are not sure that the prosecution have proved that the defendant intended to cause really serious harm to Mr Hui, you would return a verdict of not guilty to murder and would go on to consider the alternative to (of) [52] manslaughter.

If you are sure that the prosecution had proved each of the elements of the offence of manslaughter as set out in the written definition that you have, then your verdict in respect of manslaughter would be guilty. You would not be asked to return a verdict in respect of the offences of wounding with intent or wounding.

If you are not sure that the prosecution had proved each of those elements of the offence of manslaughter, your verdict would be not guilty.”

75. Having given the jury directions as to the sequence in which they ought to approach the issues arising in delivering their verdicts, the judge gave the jury directions in respect of the approach to be taken in respect of the alternative bases on which a verdict of manslaughter might be returned.  On the material available to this Court it does not appear that counsel were given any advance warning by the judge of the direction he gave to the jury.  He said :[53]

“ …it is possible for there to be a verdict of manslaughter that could arise in two ways. One, by provocation; or secondly, by the prosecution failing to prove an intention to kill or cause grievous bodily harm, but proving manslaughter by a dangerous and unlawful act. If you were to return a verdict of guilty to manslaughter, it must be the result of at least five of you agreeing it was either by reason of provocation, or a dangerous and unlawful act.

In other words, if three of you thought he was guilty because he was provoked and two of you thought he was guilty because it was a dangerous and unlawful act, that would not do.  Five of you at least must be agreed on the basis of a guilty verdict in respect of manslaughter, if you were minded to return a verdict of guilty on manslaughter.  [Italics added.]

Pro forma

76. In the course of a addressing the jury in respect of the questions to be posed of them, as set out in the ‘pro forma’, in delivering their verdicts the judge went on to repeat the direction as to the necessity for the requisite majority of at least five jurors in respect of the alternative bases on which a verdict of guilty of manslaughter might be returned.  He said :[54]

“ On what basis do you find the defendant guilty of manslaughter ... an ... unlawful”... and dangerous act or manslaughter by reason of provocation? …

I am going to repeat what I just told you just a moment ago.  At leave five of you have to be agreed on a basis; you cannot divide the manslaughter up between the two different bases.  You require the majority on one or the other.”

77. Although, as was noted earlier, Mr Loughran raised some points of objection to the content of the summing up with the judge at its conclusion, no objection was made in respect of the direction as to a requisite majority in respect of a verdict of manslaughter on either basis.

The Law

78. The judgment of the Court of Appeal of England and Wales, delivered by Rose LJ, as he was then, in R v Jones (Douglas) [55], addressed the issue of the necessity or otherwise for a judge to give a direction to the jury that unanimity, or agreement by the requisite number of jurors, in respect of the specific basis on which a verdict of manslaughter was returned.  The appellant had been charged with murder but convicted of manslaughter.  The alternative verdict of manslaughter had been left to the jury on the basis of provocation or an unlawful and dangerous act in the absence of specific intent.  The judge gave no such direction.

79. As Rose LJ noted, during their retirement the jury asked for further directions “… on self-defence, manslaughter in connection with intent and provocation and on the need for majority verdicts.”  Having given further directions as to the elements of the offence, the judge directed the jury that the direction as to a majority verdict applied to any verdict that they may wish to enter.  The jury was given no further direction.

80. Rose LJ described the submissions made by Ms Montgomery QC on behalf of the applicant as being :

“ ... that the jury ought to have been specifically directed that they must be unanimous as to the route by which they reached any verdict of manslaughter. She does not, as we have said, submit that such a direction should have been given in the course of the summing-up.  But, she submits that, once the jury by virtue of the request they posed in the note seeking further directions, had indicated that there was the possibility of confusion in their minds as to any possible route by which a verdict of manslaughter was reached, the learned Recorder should then have given such a direction. Because no such direction was given, it may be that this jury had failed to agree, as they properly ought to have done, upon the verdict of manslaughter: they may not have been agreed as to whether provocation or absence of intent was the reason for reaching the manslaughter conclusion.”

81. Furthermore, he noted that in support of those submissions :

“ …she invited the Court’s attention to R v Brown 79 Cr App Rep 115, [1984] Crim LR 167. In the course of giving the judgment of the Court of Appeal, Lord Justice Eveleigh, in a case involving the fraudulent inducing of investments, said this at page 119 of the former report :

‘ In a case such as that with which we are now dealing, the following principles apply: 1. Each ingredient of the offence must be proved to the satisfaction of each and every member of the jury (subject to the majority direction).  2. However, where a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one of them is capable of doing so, then it is enough to establish the ingredient that any one of them is proved; but (because of the first principle above) any such matter must be proved to the satisfaction of the whole jury.  The jury should be directed accordingly, and it should be made clear to them as well that they should all be satisfied that the statement upon which they are agreed was an inducement as alleged.’ ”

82. Rose LJ noted that in addition Ms Montgomery had referred the Court to the speech of Lord Ackner in the House of Lords in R v More [56] :

“ whether or not a particular direction adequately expresses to the jury the obligation of the prosecution to prove to the jury’s satisfaction each ingredient of the offence must depend essentially upon the precise nature of the charge, the nature of the prosecution case and the defence and what are the live issues at the conclusion of the evidence.”

83. The submissions of the respondent, in opposing the submissions of Ms Montgomery, were described by Rose LJ as being :

“ On behalf of the Crown, Mr Bevan stressed the crucial difference between the essential ingredients of an offence on the one hand and the basic factual constituents of a defence on the other.

The ingredients of an offence, he submitted, never alter. In relation to the necessary intent for murder it is a matter of fact for the jury, whether such an intention has been proved. The fact that the defence is that there was no such intention, does not change the essential ingredient of the offence of murder, that there must be a specific intent. Likewise, the fact that the defence is provocation, which is capable of reducing murder to manslaughter, does not alter the ingredients of the offence of either murder or manslaughter. Similar considerations apply in relation to diminished responsibility and, indeed, in relation to manslaughter due to gross negligence. The ingredients for manslaughter, submitted Mr Bevan, are proof of an unlawful act, by the defendant, which causes the death of the deceased.

In a stabbing case, he submitted that the route by which a jury reaches a verdict of manslaughter, whether that route is by one or more of the possibilities of lack of intent, provocation, or diminished responsibility, is immaterial. If it were required of a judge, in accordance with Miss Montgomery’s submission, that a direction should be given that the jury must all be agreed on the route by which the verdict of manslaughter is reached, that would lead to turmoil. One might have 12 jurors agreed that murder was not proved, though they may agree that the defendant was guilty of manslaughter: but, in a particular case, four might take the view that that was because of a lack of intent to kill or cause really serious harm, four, might base their conclusion on provocation and four might reach that consequence by virtue of the defence of diminished responsibility.

Such a direction, therefore submitted Mr Bevan, is not only not generally appropriate, but was not appropriate at any stage in this case.”

84. Rose LJ said that where there was more than one possible basis for a verdict of guilty of manslaughter, it lay within the judge’s discretion, for the purpose of assisting the judge in sentencing, to indicate to the jury in the summing up, either by a series of written questions or by an indication as to his intention to pose questions, as to the basis of the verdict of manslaughter.  However, he went on to say :

“ The answer to the enquiry will provide the judge with additional information. The response of the jury is precisely that. It affords, as it seems to us, an explanation as to why a verdict of not guilty has been returned in relation to murder. It does not, as it seems to us, provide any necessary indication, as a matter of law, as to the route by which the verdict of guilty of manslaughter has been reached. In our judgment, provided the jury are agreed that a defendant is guilty of manslaughter, in the sense that they are sure that he perpetrated an unlawful act which caused the death of the deceased, it is unnecessary that there be any unanimity by the jury as to the route by which that verdict is reached. Indeed, it is implicit in what we have said that the considerations adverted to in Brown, as to the need for a jury to be unanimous as to the ingredients of the offence and the facts substantiating those ingredients, do not have any application in the present circumstances.” [Italics added.]

85. At the hearing, counsel for both parties answered in the affirmative the Court’s enquiry as to whether or not they accepted that the law in Hong Kong was as set out in the judgment of Rose LJ in R v Jones (Douglas).  With respect, we are satisfied that they were correctto do so. 

86. In adopting the positions that they did, neither party supported the majority judgment in the Court of Appeal of Northern Ireland in R v McCandleness [57], to which their attention had been drawn by the Court, it being the fruit of the research of one of the Court’s Judicial Assistants.  In the judgment of the majority delivered by Lord Carswell CJ, as he was then, the Court declined to follow R v Jones (Douglas).[58]

Misdirection

87. On the basis that the law in Hong Kong was as identified in R v Jones (Douglas), both counsel submitted that the judge’s directions were a misdirection. Mr McGowan submitted that it was a material misdirection, whereas Ms Lai contended that the direction was not material.  She said that if the Court was against her, she invited the Court to apply the proviso.  Mr McGowan submitted that was not permissible in the circumstances of the case.

88. In his oral submissions, Mr McGowan invited the Court to note that in providing the jury with directions as to steps to be taken in returning verdicts the judge had said :[59]

“ You do not have to do it this way; it’s just my suggestion. It’s up to you but this, I hope, does it logically for you.”

89. He said that, in those circumstances, the danger existed that the jury had not followed the judge’s suggested sequence in their approach to be verdicts.  He submitted that it was possible that the jury had embarked on a consideration of a verdict of manslaughter, on either basis, before having resolved the issue of whether or not they were satisfied that the ingredients of murder were proved, in particular that the applicant had the requisite specific intent for murder.  In those circumstances, it was possible, for example, that four jurors were satisfied on the basis of provocation and three on the basis of a dangerous and unlawful act.  However, since neither result satisfied the judge’s direction as to the requisite majority, they might have concluded that manslaughter was not available to them and, having returned to a consideration of murder, reached a verdict of guilty of murder.

90. In that context, Mr McGowan went on to invite the Court to note that, although the judge had given the jury the standard direction[60] as to the requisite majority for a verdict and directed them “a division of 4/3 either way is not a verdict.  Should that position arise, I will give you some further directions”, [61] he did not remind the jury specifically of those directions when subsequently he came to give his directions as to the requisite majority in respect of a verdict of manslaughter on either available basis.

91. For her part, Ms Lai submitted that the verdict of six of the jurors that the applicant was guilty of murder evidenced the fact that they were satisfied of proof of the requisite specific intent for murder and that the prosecution had disproved provocation.  She submitted that verdict was entirely consistent with the jury having followed the logical sequence of steps set out by the judge to be taken in reaching their verdict. She said that Mr McGowan’s suggestion the jury might have been agreed upon a verdict of manslaughter, but had been unable to reach the requisite majority for the basis of that verdict, and that six of them and gone on to deliver a verdict of guilty to murder implied that the jurors were not true to their respective oaths.  Rhetorically, she asked : “How could the jury deliver a verdict of murder in those circumstances?”  She said that a jury was to be trusted to be true to their oath, unless there was compelling evidence to the contrary.  There was none.

92. We are satisfied that the judge was justified in describing the sequence in which he invited the jury to consider the determinations leading to their verdict as being logical.  The obvious powerful logic lay in the fact that, if the jury resolved the issues of causation and self-defence against the applicant, it invited them to have regard to a hierarchy of culpability : first, was it proved that the applicant had the requisite specific intent for murder?  Secondly, if so, had the prosecution disproved provocation?  Thirdly, if not had the prosecution proved the ingredients of the offence of manslaughter by an unlawful and dangerous act without specific intent?  Then, if necessary, there followed consideration of the remaining issues. 

93. That approach reflected the count on the indictment on which the applicant stood trial, namely murder.  The verdict of manslaughter was alternative to the primary charge.  The first business of the jury, if satisfied as to causation and having resolved the issue of self-defence against the applicant, was to consider and resolve the primary charge.  Then, to address the issues that flowed from that finding.

94. As noted earlier the judge had given the jury the standard direction in respect of the permissible majority verdicts that the Court could accept.  In fact, he did so no more than 30 seconds before giving the jury his directions as to the requisite majority for a verdict of manslaughter on either of the two bases.  If the jury had embarked on the wholly illogical step of considering a verdict of manslaughter before resolving the issue of murder and provocation, and had reached an impasse of an unacceptable split, it was to be expected that they would have complied with the judge’s directions and raised the matter with him as he had stipulated.[62]  They did not.

95. In the result, there is nothing at all to suggest that the jury did other than address the issues in the logical sequence that the judge had suggested to them in his directions.

96. We are satisfied that the judge’s direction that a requisite majority was required for a verdict of manslaughter on either of the two bases was a material misdirection, going as it did to an important part of the process by which a verdict of manslaughter might be reached.

Proviso

97. Notwithstanding that we are satisfied that there was a material misdirection in that respect, we are satisfied for the reasons set out above that inevitably the jury would have reached the same verdict, namely of murder.  In the circumstances of this case, we are satisfied that the jury reached their verdict without having to consider the alternative verdict of manslaughter, albeit, that obviously they would have been aware that it was available to them if the primary issues arising in murder were not resolved in favour of the prosecution.  In those circumstances, they would not have had to consider the process by which they reached such a verdict in accordance with the judge’s misdirections, as we have found them to be.

Conclusion

98. Having regard to the misdirections by the judge as to the need for a requisite majority in giving a verdict on either of the two bases of manslaughter, we allow the application for leave to appeal against conviction.  However, treating the hearing of the application as the hearing of the appeal, we dismiss the appeal.