LAI HON-MAN v. R.

IN THE COURT OF APPEAL

1994, No. 67
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court): The applicant was convicted of murder by a majority verdict after trial before His Honour Judge Leong and a jury on 28th January 1994.

2. The facts can be simply stated. The applicant was friendly with his victim but he stole a bank card from him and removed money from his account. According to a statement later made by him, he visited the deceased's flat to replace the card which he had taken and took along with him a length of speaker wire. He said that this was for his own protection in case the deceased became angry with him. During the visit, the deceased was killed by the defendant by the placing of a ligature round his neck, using the wire. The body was left outside the flat on a staircase presumably to simulate a robbery.

3. The applicant did not give evidence but his statements were partly self- serving and raised issues about the applicant's intent when the killing took place, and whether he was provoked into the killing. The judge therefore left these issues to the jury for them to consider whether to acquit of murder and convict of manslaughter on either of those two grounds. In the result the jury convicted of murder by a five to two majority. This trial was a re-trial.

4. The applicant had originally been tried before Gall J and a jury. In that trial the jury convicted of murder but later that verdict was quashed by this Court on the grounds that the judge had misdirected the jury on a possible alternative verdict of manslaughter on the two grounds we have mentioned. This conviction was on 23rd September 1992. At that time the mandatory sentence for murder was death. It was not open for the jury to bring in a majority verdict on such a charge. The verdict had to be unanimous.

5. Over recent times a sentence of death when passed for murder has always been commuted to life imprisonment by the Executive. Nevertheless the law remained in force and a mandatory sentence of death was passed for that offence.

6. After the conviction and before the re-trial, the Crimes (Amendment) Ordinance came into force on 22nd April 1993. By s.5 of that Ordinance the death penalty was abolished and imprisonment for life was substituted. The amendment was to s.2 of the Offences Against the Person Ordinance, Cap.212. By s.15, s.24(4)

of the Jury Ordinance was repealed. The effect of these amendments was to replace the death penalty for murder by a mandatory sentence of imprisonment for life and to allow a majority verdict on murder charges.

7. The point of this application is that on the second trial, the jury convicted of murder by a majority. This was not open to the jury on the first trial. Therefore, it is suggested that if the issues had been properly left to the jury in the first trial, the verdict in the second trial demonstrates that the jury in the first trial would not have been able to reach a unanimous verdict on murder and, it is submitted, the result would have been an acquittal of murder and a conviction for manslaughter.

8. To be fair to Mr Sceats, who appears for the applicant, he does not quite put it so high. He says that the likely result would have been an acquittal of murder and a conviction for manslaughter.

9. Although the applicant did not plead guilty to manslaughter, he offered a plea of manslaughter on the first trial and at no time in either trial was it suggested on his behalf that a complete acquittal was possible. His case was that he should be acquitted of murder and convicted of manslaughter.

10. Mr Sceats submits that the alteration of law in these circumstances, and in the particular case of this applicant, has brought about an injustice. Therefore, he submits, it cannot have been the intention of the legislature that the effect of the amendment should be retrospective so far as a majority verdict is concerned. He submits that such an intention can only be gained from the enactment itself and it cannot be so interpreted. As the defendant has been put at a disadvantage and has been deprived of a benefit, he contends that the legislature cannot have intended that the Crimes (Amendment) Ordinance should have the effect of depriving the applicant the right to have murder proved against him on a unanimous verdict.

11. There is no doubt that the applicant is entitled to the benefit of the lower penalty of life imprisonment immediately upon the passing of the Crimes (Amendment) Ordinance - the Bill of Rights so provides. But Mr Sceats argues that although the provisions relating to majority verdicts are procedural requirements, nevertheless the overriding consideration is whether the Ordinance provides that the provision should be immediately effective. He submits that the legislature is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them unless a contrary intention appears. For that proposition he cites the Secretary of State v Tunnicliffe [1991]2 ALL ER 712. At 724 Staughton LJ said:

"In my judgment the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be a matter of degree - the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended."

Although this case is not binding upon this Court we would follow it.

12. The first point in this application is, did the legislature intend the provisions to have immediate effect? There is no transitional provision in the Crimes (Amendment) Ordinance. As Mayo J said in the course of argument, this Ordinance is a complete package. The preamble reads "An ordinance to amend the Crimes Ordinance and other Ordinances to repeal the death penalty and make other amendments consequential to that repeal". This Ordinance is undoubtedly aimed at repealing the death penalty. Once repealed there are other consequences which must follow in order to make the law and its application consistent. One of those consequences is that a majority verdict is applicable to murder as for other offences carrying life imprisonment.

13. For our part, we have no doubt that it was the intention of the legislature to bring these provisions in and to make them immediately effective in all circumstances and for all cases. That includes not only the applicant's case but all those many other cases which they must have been pending for trial before the courts.

14. Having made that decision, the second matter is subsidiary but we approach it: Was there here any unfairness? Once the Crimes (Amendment) Ordinance was passed and came into effect, the applicant was no longer liable to the death penalty. That is not a mere technicality. Those who were convicted to murder were sentenced to death. That was the order of the court. The commutation to life imprisonment was never as of right but only an act of clemency by the Executive. The arguments which have been attractively advanced by Mr Sceats were described by him as "simplistic and perhaps speculative". That is our view also. The applicant was tried according to law. It is not possible to say whether on the first trial he would or would not have been convicted of murder had the directions from the judge been proper and correct. Nor is it possible to say whether on the second trial a jury charged to bring in a unanimous verdict would have done so or not.

15. In the result, in spite of Mr Sceats' attractive and in some ways persuasive argument, there is no substance in this application. Leave is refused.