HKSAR v. NGAI HON KWONG

CACC 389/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 389 OF 2014

(ON APPEAL FROM HCCC 33 OF 2014)

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J U D G M E N T

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Hon McWalters JA (giving the judgment of the court):

INTRODUCTION

1. The applicant seeks leave to appeal against his conviction on 28 October 2014, after trial by Deputy High Court Judge Stuart-Moore and a jury, of the murder of Cheng Kong Sang (“the deceased”) on 12 June 2013.  At the hearing of the application on 12 June 2015 the applicant was represented by Mr Phillip Ross who, after arguing the first ground of appeal was, together with his instructing solicitors, discharged by the applicant.  The Director of Legal Aid appointed a new legal team for the applicant, led by Mr G McCoy SC and they filed amended perfected grounds of appeal on 9 September 2015.  However, the applicant subsequently discharged Mr McCoy on 2 October 2015 and represented himself at the resumed hearing on 19 January 2016. 

2. At the conclusion of that hearing we reserved our judgment and said we would hand it down at a later date.  This we now do.

THE TRIAL

The prosecution case

3. On 29 May 2013 the deceased was in premises at Flat A, 1^st Floor, No 11 Tak Ku Ling Road, Kowloon City, Kowloon, Hong Kong.  He sublet the premises from his brother, Lung Gor and they were occupied by the deceased, the applicant and the applicant’s partner, Wong Sheung Ting, whom the applicant referred to as his wife. 

4. On that day there were a total of five persons in the premises.  They were the deceased, the applicant, Wong Sheung Ting, the second prosecution witness, a girl called “Ko Mui” and a woman Yang Ting, referred to as “Ting Ting”, who was the first prosecution witness. 

5. The deceased was sitting, apparently asleep, in a chair in the lounge room of the flat when the applicant splashed isopropyl alcohol onto the deceased and also onto his own right arm and right foot.  Very shortly after splashing the alcohol, it caught fire, thereby causing second degree burns to 2% of the applicant’s total body surface area and extensive second to third degree burns to 70% of the total body surface area of the deceased. 50% of the deceased’s burns were full thickness burns and 20% were partial thickness burns.  The burns to the deceased involved his face, neck, chest wall and anterior abdominal wall and his eye, with near or complete circumferential burns to all four limbs.  The deceased was resuscitated at the Prince of Wales Hospital and admitted to its Intensive Care Unit.  However, he died from complications from his burns after 12 days’ treatment in the hospital.  

6. The prosecution relied on the evidence of the first witness, Ting Ting, who was the only eye-witness to what the prosecution alleged was a deliberate assault by the applicant upon the deceased.  She testified that the incident occurred at the premises at around 4:50 pm on 29 May 2013.  Earlier, all but the deceased had a meal in the flat. After the meal, the applicant and his girlfriend went back to their bedroom which was the verandah of the flat.  Subsequently, the applicant came out of the bedroom and went to the toilet before going over to a stool in the living room where a bag belonging to the deceased had been placed.  The deceased was then sleeping on the sofa next to the stool.  The applicant was not in a good mood and tossed the deceased’s bag from the stool onto the ground.  The applicant sat on the floor and put his feet on the computer desk.  He sat there for a while before returning to his bedroom. 

7. The deceased went to the toilet and on his return sat on a black folding chair by the television and the fish tank.  He appeared to go back to sleep.  At some stage Ko Mui went and slept on the sofa.  Ting Ting was sitting at the mahjong table, about 8 feet from the deceased.  The judge summarized her evidence of what happened next as follows:

“[The applicant] came out of the bedroom. He went to the computer desk. He took a white bottle of something, I don’t know what was inside. He said: ‘Wake up from sleep already, still not awake?’ Then he splashed the stuff in the white bottle onto [the deceased’s] face; Ting Ting said that when this happened the applicant was very close to the deceased, right in front of him and was holding the bottle of alcohol in both hands he splashed the liquid over the deceased twice very quickly.”

Ting Ting continued:

“Very quickly the deceased rose to his feet. I was very frightened and cried out loudly. It happened very quickly. All of a sudden he was on fire. He was standing when I saw the fire. He was sitting when the liquid was splashed on him. He had been asleep on the black chair. The defendant was also on fire so he patted himself down.”

8. Ting Ting did not see how the deceased caught fire but the next thing she saw was that he was covered in flames.  According to her it all happened very quickly.

9. Ting Ting went to the kitchen to get water to help put out the fire on the deceased.  Wong Sheung Ting came out of the bedroom and also helped the deceased by patting on him with something.  The deceased also patted himself and moved over to behind the computer desk and sat on the floor.  When Ting Ting touched the deceased, his skin peeled off.  The fire was soon put out as Ting Ting said that when she came out with water the second time, the fire had already been extinguished.

10. Ting Ting said that only she and Wong Sheung Ting helped extinguish the fire on the deceased.  The applicant just stood there, although as he also had caught fire, he patted himself down to extinguish the flames on his own body.  She also said that no-one had been smoking at the time of the incident.

11. At some point, the applicant left the premises. Ting Ting called the police and there came a time when the deceased went down the stairs slowly by himself.  When he reached the entry of the staircase, he bent over and could go no further.  Ting Ting went to the road and waited for the ambulance to arrive.  After it had arrived she saw the applicant who had bought cigarettes and was drinking Coca Cola. 

12. Ting Ting denied the defence case that what had taken place was an accident.  Amongst the matters put to her as part of that case with which she disagreed was that the applicant caught fire first, not the deceased.  It was also put to her that when the applicant caught fire he threw away the lighter in his hand and that was how the deceased caught fire to which she replied:  “I don’t know this”.

13. Wong Sheung Ting was the next witness.  She said that the relationship between the deceased and the applicant was very good and that they were old friends.  Their relationship was so good that the applicant referred to the deceased as Big Brother.  She never saw them quarrel although she had heard of a quarrel a long time ago.  The rent and utilities of the flat were paid for by the deceased.  She and the applicant did not have to pay anything. 

14. At the time of the incident Wong was in the verandah bedroom.  She said that after the meal she had not heard the applicant calling out in a loud voice to the deceased.

15. Although she did not see the start of the fire, the door to the verandah bedroom was open and she saw the deceased on fire when she alighted from her bed.  She was then still on the verandah.  She saw the applicant walk back quickly into the bedroom, take a bucket and obtain water from a wash basin on the verandah to put out the fire.  She said the applicant and she both put water on the deceased.  She denied that she had used her hands to pat the deceased and she claimed that Ting Ting had not helped in putting out the fire.

16. Wong heard the applicant make the 999 call and she gained the impression that he was worried about the deceased.  She said the applicant instructed Ting Ting to call the police and they both made calls together.  After the calls were made the applicant left the flat. 

17. Wong also said that after the applicant left the flat the deceased kept calling for Ko Mui and when Ko Mui went up to him the deceased said to her: “Who was it?  Who was it?”  Wong said that she and Ting Ting then escorted the deceased downstairs.

18. Wong claimed that the deceased was a drug dealer and that the flat was mainly a place for taking drugs.  She said that she had previously seen Ting Ting taking drugs at the premises and that Ting Ting had taken “ICE” before the fire occurred on that day.  She also confirmed that the applicant was a drug addict who took “ICE” and was trying wean himself off heroin by taking methadone.  The applicant worked as a tattoo artist and for that purpose kept isopropyl alcohol in the flat.

19. A sergeant arrived first at the scene with two other officers.  He testified that upon arrival, shortly before 5 pm, he saw two women, neither of whom was Ting Ting, and the deceased, severely burnt, stepping out of the building.  He then saw the applicant who told him that his friend had been burnt.  The sergeant asked the applicant how his friend got burnt and the applicant replied that he had wanted to wipe the fan blades with isopropyl alcohol and that, accidentally, he had tripped over something and the alcohol had splashed on the other person’s body.  The applicant also told him that he, the applicant, was smoking and consequently the other person caught fire. 

20. Later the applicant and the police officer went upstairs to the flat.  The applicant was nervous and emotional and smoked a cigarette to calm himself down.  The police officer then asked him again what had happened and the applicant repeated his story about taking a bottle of isopropyl alcohol to clean fan blades, tripping and splashing the deceased and then igniting him with a cigarette. 

21. It was put to the sergeant that the applicant had told him that he was intending to use the isopropyl alcohol to clean a sewing machine, but the sergeant denied this.  However, the sergeant did agree that the applicant looked emotional and showed concern for the deceased.

22. The two officers who had arrived at the scene with the sergeant accompanied the deceased in the ambulance.  One of those officers, PC Luk, said that he had spoken to the deceased in the ambulance and he had told PC Luk that he did not know how he had caught fire or who had done it.

23. Dr Leung said isopropyl alcohol is inflammable and that experience showed that it needs a naked flame, as opposed to a cigarette, to ignite it.  No alcohol was found on the clothing of the deceased, but it may have burnt off.  However, acetone was found on his clothes, but that may have been because he was used to dealing with thinners in the flat.

24. It was an admitted fact that a glass bottle with a plastic straw and a glass nozzle was found inside a rubbish bin on the staircase between the ground floor and the first floor of the building.  Inside the glass bottle there was a plastic bottle containing 15 millilitres of a liquid containing traces of methamphetamine, that is “ICE”. 

25. It was also an admitted fact that a plastic bottle with a red plastic straw and a glass nozzle were seized from a rubbish bin inside the applicant’s flat.  Inside the plastic bottle was another plastic bottle containing 15 millilitres of a liquid containing traces of methamphetamine.

26. It was an admitted fact that the applicant called 999 at 4:54 pm on 29 May 2013 with his mobile phone numbered 94712139 and that Ting Ting made a 999 call at 5:01 pm on the same day.  The applicant’s mobile phone call register showed his 999 call as lasting 2.01 minutes.

27. The applicant voluntarily participated in three video recorded interviews all of which were produced as part of the prosecution case. 

28. In his first interview the applicant said he intended to use a bottle of isoprophyl alcohol to wipe a sewing machine.  The alcohol was contained in a 1.5 litre Coca-Cola bottle.  This bottle, he said, was placed next to the executive chair at the writing desk and behind the writing desk.  The cap of the bottle was closed, so the applicant unscrewed it whilst walking.  Then the alcohol spilt onto the body of the deceased and it caught fire at once.  When asked how it caught fire the applicant said the deceased was smoking.  The applicant claimed he also caught fire on both arms and legs. 

29. The applicant said he then went to the toilet to put out the fire on himself and when he returned he saw the deceased, who was on fire, go to the place from where the alcohol had been taken.  So, he returned to the toilet to get water to put out the fire on the deceased.  He intended to get a bucket of water and splash that on the deceased and put out the fire on him. He got less than a full bucket and splashed it over the deceased and the fire was put out.  He then went downstairs to a store to call the police.  He made another phone call to 999 on his mobile phone.  Prior to the incident, his wife was sleeping on the verandah.  He did not notice what Ting Ting was doing.

30. When asked about what he told the police officer downstairs he said that his answer to the police officer that he was smoking was wrong.  In fact, the deceased was the person smoking.

31. He said he had gone to the toilet to put out his fire.  At that moment, he saw the deceased, on fire.

32. During the second interview, the applicant admitted that he had been taking “ICE” for 10 odd years.  He took it every day but said that he did not take it on those few days.  However, subsequently he said that he had taken one or two mouthfuls of “ICE” on the material day at 2 to 3 pm.  However, he insisted that he was conscious at the material time.

33. In this second interview he was asked a number of times whether the deceased was smoking and his answers were far less definite.  They ranged from “I didn’t notice” to “Should be” to “I just think so”.  They suggested that he didn’t actually see the deceased smoking and he was simply trying to come up with an explanation for why the deceased caught fire. 

34. In his third interview he was asked about when he took “ICE” on 29 May and the effect it had upon him.  He said he last took it before the incident, although he maintained that after taking the “ICE” he remained fully conscious.

The defence case at trial

35. The applicant elected to give evidence.  He said that he and the deceased had known each other for 30 years and that they were good friends.  So much so, that he called the deceased his “Big Brother” and their relationship was like natural brothers.  He and his girlfriend were allowed to live in the flat rent free and were the only full time residents of it.  

36. The applicant said that the flat was an illegal mahjong house run by the deceased and his brother Lung Gor who had sublet the flat to the deceased.  His role was cleaning up the place and doing repair work.  Persons who came to the flat would consume “ICE” and sometimes they would bring it with them.  He said Ting Ting earned a living by selling “ICE” in the premises and acting as a replacement player at the mahjong table.

37. The applicant said he had in fact taken “ICE” on 29 May 2013, but apart from that, he took no other drugs on that day.  He said he stopped taking heroin several months earlier and methadone had been used to replace it.  Because of that, he had suffered from withdrawal symptoms from time to time.  He did suffer them on 29 May and this caused him to feel bad.  Taking “ICE” would slightly alleviate the effect of some of the symptoms.

38. In respect of the incident he said that after the meal, the deceased slept on the sofa before he moved to sleep in the chair. The applicant left his bedroom intending to unscrew the plate on a sewing machine and use the alcohol to clean it.  He went to the living room to collect a bottle of isopropyl alcohol.  The bottle of alcohol was full.  He unscrewed the cap and smelt it to check it was in fact isopropyl alcohol.  Then, whilst the cap was off the bottle, he tripped over something on the floor and, as he jerked forward, the bottle flew away from his hand.  The liquid inside the bottle splashed out and onto the deceased.  He intended to get a towel and a mop to clean the deceased and the area where the alcohol had landed, but he then saw the “ICE” bottle on the computer table and decided he would first smoke some “ICE”.  He lit a lighter in order to smoke the “ICE” and when he did so his hands caught fire, as did his leg and the instep of both feet.  He threw everything away and, in order to put out the fire, he shook his hand and jumped around.  

39. He did not notice how the deceased caught fire, as he only realized the deceased was on fire after he, the applicant, had put out the fire on himself.  He said he was not angry with the deceased and he did not say anything to the deceased before the alcohol was splashed.  He then got a bucket of water to put out the fire on the deceased.

40. He said he dialed 999 twice.  First, by his mobile phone from inside the premises and secondly, using a phone at a store downstairs.

41. He agreed he told the police officer at the scene that he was smoking when the fire happened, but now said that the fire was not caused by this.  He said there was no reason to tell the police officer that the fire started because he was smoking “ICE”.

42. He explained that when, in his video interviews, he had told the police officer it was the deceased smoking it was because he was confused and frightened.  He was afraid that if he mentioned consuming dangerous drugs, it might have a negative effect.  He said the truth is that he had used a black lighter, which he had subsequently discarded, to light the “ICE” bottle.

43. When asked in cross-examination how the alcohol ignited the applicant replied:

“I was running up and down, I don’t know how he ignited. How can I guess how close I was to him? At the time I noticed him, he was already on fire all over. I was very close, next to him. After I put out my fire, he was very close, an arm’s-length away. It should be the case that he ignited from the fire on me.”

44. The applicant denied both deliberately splashing the alcohol on the deceased and deliberately igniting it.

45. The applicant admitted he was suffering from withdrawal symptoms and that he felt very bad.  But he claimed he could tolerate it and denied that he was not himself.  He felt weak and uncomfortable, but by taking two puffs of “ICE” he could feel more comfortable.  He knew what he was doing.

46. The applicant denied uttering foul language, but agreed that he was angry and in a bad temper as a result of an argument with his partner.  That is why he threw the bag onto the floor.  But, he said, he had calmed down already by the time he left the computer desk.

The judge’s summing up

47. In his remarks at the beginning of his summing up, the judge said he would identify for the jury’s benefit what he described as “the central issue” in the case.  After summarising the prosecution and defence cases he said that:

“the real question in the end for you is this – and I think it might be helpful if you wrote it down because it is really what this case comes down to - are we sure - that is we, the jury, sure - that the defendant deliberately set the deceased on fire? – whether you find him guilty of murder or manslaughter, it can only be on the basis that you are sure that the defendant deliberately set the deceased alight or on fire. That is what it comes down to.”

48. However, notwithstanding that the judge saw this as being the key issue for the jury, he was also concerned that the applicant was suffering heroin withdrawal symptoms and that his actions, if deliberate, were done towards a very close friend and were, on their face, inexplicable. Consequently, the judge discussed with counsel prior to his summing up whether he should leave the alternative verdict of manslaughter by unlawful and dangerous act to the jury.  The basis for such a verdict was explained by the judge to counsel as being that:

“… there is evidence of drug-taking and in case the jury wondered what would be the position if the defendant was not in a position to have formed the intent to kill or cause grievous bodily harm.”

49. Counsel did not object to the judge directing the jury on this alternative verdict, but neither did they lend their support to it in their closing addresses.  Both prosecutor and defence counsel portrayed the case as either murder or accident and neither invited the jury to return a verdict of manslaughter.  In fact, defence counsel said it could not be manslaughter.

50. The manslaughter direction made its way into the judge’s summing up in the following form:

“But what about the evidence of consumption of ‘ICE’ by the defendant?... it may have relevance in the context of … manslaughter and it is only fair that I tell you what the law is of manslaughter just in case your deliberations wonder what would have been the position if he did not know what he was doing properly.

If you think what the defendant did was a deliberate and unlawful act but that he was so affected by the ‘ICE’ that he had taken that day, by his withdrawal symptoms from heroin, that he may not have intended to cause really serious harm to the deceased or to kill him, than you must acquit him of murder and you would be entitled to convict him of manslaughter, provided what he did was an unlawful act, and a dangerous one at that.

…

The only way in which manslaughter could arise in this case is if you, the jury, were not satisfied and sure that the defendant had intended, at the very least, to cause really serious bodily harm to the deceased but you were sure that he had committed unlawful acts which had led to the death.  That is the only way. In other words, the prosecution have been unable to prove an intention to kill or cause really serious bodily harm but they have proved everything else.  That is how manslaughter could arise...”

51. Because the only form of manslaughter left to the jury was manslaughter by an unlawful and dangerous act, the judge was right to direct the jury that:

“… manslaughter cannot possibly apply on the account given by the defence …. The defence case is pure accident …. So on the defence case … there are three accidents, trip, liquid going over the deceased, and lighting his own hand with the liquid that was on his hand as he attempted to smoke methamphetamine.”

The grounds of appeal against conviction

52. The two grounds of appeal contained in the Perfected Grounds of Appeal against Conviction dated 3 March 2015 advanced by Mr Phillip Ross for the applicant are:

(I)   the judge failed to direct the jury that the applicant may be convicted of the lesser offence of manslaughter by gross negligence, if the jury were satisfied that the applicant deliberately threw isopropyl alcohol on the deceased, but did not deliberately light the alcohol;

(II)  the judge erred in directing the jury that a 4 to 3 majority decision by the jury was a disagreement and failed to direct the jury if they were minded to decide by a 4 to 3 majority, which was a valid decision but they needed to be further directed.

53. In the amended perfected grounds of appeal filed by Mr McCoy, the second ground of appeal is not pursued.  The first ground of appeal is repeated and in addition Mr McCoy raised an allied ground that the judge wrongly directed the jury that the only alternative verdict was manslaughter by unlawful and dangerous act.

54. At the hearing, the applicant advanced a number of complaints: including, that the audio recording of the 999 call was unlawfully edited; the presence of acetone on the clothing of the deceased showed it was not his, the applicant’s actions, that caused the deceased to catch fire; and that Ting Ting was an unreliable witness whose evidence was not credible.   

Discussion

55. In view of the way we deal with the first ground of appeal, it is not necessary for us to address the other grounds of appeal or the complaints raised by the applicant personally.

56. The actions that underly this offence can be broken down into two physical activities by the applicant.  They are:

1)   causing isopropyl alcohol to be applied to the deceased;

2)   causing the isopropyl alcohol to be ignited.

57. In respect of both activities, the prosecution case was that the actions of the applicant were deliberate and that what is involved is one course of conduct composed of two separate acts.  That is, the applicant deliberately applied the alcohol to the person of the deceased in order to set the deceased alight and then deliberately ignited the alcohol, intending by his actions to kill or cause grievous bodily harm to the deceased.  Such a case faced the difficulty that the applicant’s actions were totally inexplicable given that he and the deceased were such close friends. It was this difficulty which appears may have been behind the judge leaving the alternative verdict of unlawful act manslaughter.  For, in the course of discussing this alternative verdict with counsel, the judge said:

“And the remarkable position of somebody who throws this kind of thing over a person who has been his friend for 30 years.”

58. Before the jury could return a verdict on the basis put forward by the prosecution, they would have to be satisfied that the applicant’s actions in both splashing the liquid onto the applicant and igniting it were deliberate, and that when the applicant ignited it what he was intending to do was to cause the deceased to catch fire.

59. It is true that the defence case for each act was the same, namely, accident, but it was open to the jury to find that the splashing of the deceased was deliberate and that the applicant ignited a naked flame in close proximity to the deceased, but not with the intention of setting him alight.  This required the jury to consider whether the two acts may have had a different explanation for their occurrence and whether the evidence allowed for this possibility.  Whether such an approach was available to the jury requires a consideration of the evidence in respect of each of the two actions that underlay the offence.

60. In respect of the first activity, there was eye-witness testimony from Ting Ting that the applicant deliberately splashed the liquid onto the deceased.  She saw the applicant standing close to the deceased, holding the bottle of alcohol in both hands and then splashing it twice onto the face of the deceased. 

61. There was also evidence that the applicant was suffering from withdrawal symptoms and in some discomfort and that he had recently argued with his partner.  If Ting Ting was believed, then the jury might well accept that the applicant was in a bad mood and an irritable frame of mind at the time that he saw the deceased still sleeping.  For whatever reason, he became upset by the fact that his friend was sleeping so much and splashed the liquid onto him to wake him up. 

62. On this scenario, the jury would have concluded that the splashing of the liquid was deliberate and they would then have to proceed to the question of how that liquid came to ignite.

63. In respect of the second activity the prosecution rely on inference, because Ting Ting did not in fact see how the alcohol came to ignite.  All she could say was that ignition of the alcohol occurred immediately after the splashing of it by the applicant onto the face of the deceased.  The inference from all the circumstances, including the shortness of time between splashing and ignition, being that the applicant must have done something to cause the alcohol to ignite and his intention must have been to cause the deceased to catch fire.

64. The applicant claimed that after spilling the alcohol on the deceased, he decided to inhale some “ICE” and in order to do so, he operated a cigarette lighter.  The lighter flame caused the alcohol that had spilt onto the applicant’s arms to ignite.  When this happened the applicant threw away the lighter and waved his arms about and jumped around to try and put out the flames, and in doing so ignited the alcohol on the deceased. 

65. On this issue of how the deceased came to be set alight, there is no doubt, for on both the prosecution and defence cases it was due to the applicant creating a naked flame.  The question for the jury was why he created this flame.  The prosecution said it was to deliberately set alight the deceased: the applicant said it was to enable him to consume “ICE”.  Against this backdrop, the jury would then have to consider the evidence of the applicant, bearing in mind that the prosecution was pitching its case as a cold-blooded murder of a very close friend with whom there was no apparent cause for the applicant to feel aggrieved.

66. Mr Martin Hui SC, Ag DDPP, for the respondent, argues that the evidence of Ting Ting does not allow for the scenario advanced by the applicant.  She places the applicant directly in front of the deceased and says that ignition took place almost immediately.  But the evidence of Ting Ting on how the ignition occurred is not as consistent and as positively assertive in the way that her evidence is on the question of how the liquid came to be applied to the deceased.  In our view, it was open to the jury to accept the evidence of Ting Ting on how the liquid came to be applied to the deceased, but to have had doubts about its reliability as a basis for drawing the inference that the applicant intended to set the deceased alight. 

67. In this situation of the applicant having been found to have created a potentially dangerous situation by spilling a substantial quantity of highly inflammable liquid, it was submitted by Mr Ross that his action of igniting a naked flame, not intending to set alight the deceased, was capable of being viewed as grossly negligent thereby requiring that the jury be directed on an alternative verdict of gross negligence manslaughter. 

68. The elements of gross negligence manslaughter were set out by the House of Lords in R v Adomako [1995] 1 AC 171.  They are:

1) the existence of duty of care by the defendant to the deceased;

2) breach of that duty by the defendant;

3) the breach by the defendant of the duty causing the death of the deceased; and

4) the breach of the duty by the defendant being capable of being characterised as gross negligence and therefore a crime.

69. Lord Mackay of Clashfern LC in a judgment with which the other members of the House agreed, said at 187C-E:

“The jury will have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the [deceased], was such that it should be judged criminal.

…

The essence of the matter which is supremely a jury question is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.”

70. All four elements are matters for the jury to decide and the judge’s role is merely to determine whether there is evidence capable of establishing each element. 

71. In R v Evans [2009] 1 WLR 1999 the Court of Appeal of England and Wales was dealing with a situation where there was a failure to act when a duty to act arose.  As to when a duty to act arose Lord Judge CJ, in giving the judgment of the court, said at 2007H:

“In our judgment, consistently with R v Adomako [1995] 1 AC 171 and the link between civil and criminal liability for negligence, for the purposes of gross negligence manslaughter, when a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a consequent duty on him to act by taking reasonable steps to save the other’s life will normally arise.”

72. We are satisfied that in this case there was evidence capable of establishing the existence of a duty of care by the applicant to the deceased.  It arose when he splashed inflammable liquid on the deceased, thereby placing him in a life threatening situation.  That duty would have continued until the applicant removed the risk of harm.

73. However, instead of acting to remove or neutralise the risk of harm the applicant actually acted in a way that ensured the potential harm was realized.

74. By igniting a naked flame before the risk of harm had been removed, the applicant breached the duty of care he owed to the applicant and there is no doubt that it led to the death of the deceased. Igniting a naked flame in these circumstances is capable of being determined by a jury as grossly negligent.  There being evidence before the jury capable of establishing each of the elements of the offence of gross negligence manslaughter, we are in no doubt that this was a verdict which should have been left to the jury.

75. In his submission, Mr Hui contended that based on the evidence elicited at trial and applying the “proportionality consideration” as set out in R v Foster (Mark) [2008] 1 Cr App R 470, the only alternative that should be left to the jury should be unlawful act manslaughter.  It was further submitted that adding a further alternative, as suggested by the applicant, would not only fail to reflect the real issues in the case, but would actually obscure those issues; confusing and unnecessarily burdening the jury and doing no justice to both the prosecution and the defence.  It was argued that the tenuous evidential basis supporting a gross negligence manslaughter verdict, as now suggested by the applicant, in fact contradicted the defence case at trial.  It was submitted that the judge was very experienced and would have had a better “feel of the case” for not leaving the unrealistic additional alternative to the jury.  Mr Hui invited the court to conclude that the fairness of the trial and the safety of the conviction were not undermined by the judge not directing the jury on the alternative verdict of gross negligence manslaughter.

76. With respect, we do not agree.  In order for an alternative verdict to be left to the jury, there has to be evidence upon which a reasonable jury might return that verdict and it matters not that the alternative verdict is not raised by the parties or is even inconsistent with the defence case.[1]

77. Here, it was the alternative verdict of unlawful act manslaughter which was lacking in evidence to support it and which was contrary to the defence case.  The defence case accepted that the applicant was affected by the heroin withdrawal symptoms, and that he had consumed “ICE” but never to the extent that he did not know what he was doing or which deprived him of the ability to form an intent.  The applicant actually testified that he was fully conscious and aware of what he was doing.  He evinced surprise when the issue of the effect of “ICE” on him had been raised “How could two huffs of it affect me?”  Even the judge recognized that there was such a paucity of evidence to support an alternative verdict for unlawful act manslaughter that, in his words, a microscope would be needed to spot it.  With respect to the judge, unlawful act manslaughter was never an available verdict on the evidence and the jury should not have been directed on it.

78. Manslaughter by gross negligence, however, had an abundance of evidence to support it and in truth, was not wholly inconsistent with the defence case.  The prosecution and defence cases both supported the scenario that the applicant caused the inflammable liquid to splash onto the deceased.  On any view this created a hazardous situation and placed the deceased in a life threatening situation.  The defence also accepted that the applicant then ignited a naked flame, an act which, in these circumstances, no reasonable person would do.

79. That the applicant’s behaviour in lighting a flame was not something any reasonable person would do was adverted to by his counsel in her closing address.  She said:

“It was also suggested to the defendant, well, you splashed liquid on your big brother; you should have woken him up, ‘Sorry,’ and tried to clean him up instead of trying to get a smoke of ‘Ice’ first. Yes, that would be the right thing to do. That is probably most of us -- those of us who are not drug addicts would do.

But the defendant was a drug addict.  He was on methadone. He had just had ‘Ice’, he was feeling bad, he was having bad feelings as a result of his heroin withdrawal.  He was not thinking like a non-drug addict, a sensible person.  And that’s why, if he was, he would have done what we would have done, that is, wake the deceased up and tell him.  But no, he was a drug addict who was going through withdrawal symptoms.”

80. This was not a case of whether there was a sufficiency of evidence to ground the alternative verdict.  The evidence was clearly there.  Whether the jury would find manslaughter or murder would depend on how the jury analysed the evidence and determined what evidence they accepted. 

81. In our view, the alternative verdict of gross negligence manslaughter should have been left to the jury and, in the circumstances of this case, the failure of the judge to do so was a material misdirection.

Proviso

82. The consequence of not leaving a viable alternative verdict of manslaughter to the jury in a murder trial was addressed by the Court of Final Appeal in Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354.  At page 364 Chan PJ, in giving the Reasons for Judgment of the court, noted that a submission by the prosecutor that the proviso should be applied because it was possible to conclude from the jury’s verdict that they must have found that the appellant had the requisite intent, had been rejected by the House of Lords in R v Coutts [2006] 1 WLR 2154.  He then said:

“22.  The same submission was made by counsel for the prosecution in R v Coutts and was rejected by the House of Lords for the reasons with which we agree. It is impossible to speculate how the jury arrived at their verdict, especially where they had not been directed on all the viable alternatives. The jury were entitled to have the entire picture and all the viable alternatives placed before them. Their approach to the evidence might have been different depending on the options they have been given. As Lord Rodger said at p.2190, in para.89:

But [counsel’s submission] is to make an unreal assumption that, at all stages of their deliberations, the jury would keep the various issues in separate boxes, to be considered in a prescribed order. The reality is that, in the course of their deliberations, a jury might well look at the overall picture, even if they eventually had to separate out the issues of murder, manslaughter and accident. So, introducing the possibility of convicting of manslaughter could have changed the way the jury went about considering their verdict.

23.  It is also impossible to say that the jury’s choice would not have been affected by the offers of alternative verdicts open to them. See Callinan J in Gilbert v R (2000) 201 CLR 414, p.441:

It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered.”

83. The court went on the quote from Lord Hutton in Coutts that “save in exceptional circumstances, an appellate court should quash a conviction, whether for murder or a lesser offence, as constituting a serious miscarriage of justice where the judge has erred in failing to leave a lesser alternative verdict obviously raised by the evidence.”  In Ho Hoi Shing, the court found no such exceptional circumstance present.

84. Mr Hui argues that by their verdict the jury clearly believed Ting Ting and this would be an exceptional circumstance that would entitle this court to conclude that notwithstanding the misdirection the verdict was safe and apply the proviso.  But, that is to assume that the jury’s analysis of the evidence and approach to their verdicts would have been unaffected had they been directed on gross negligence manslaughter.  That is a line of reasoning that the Court of Final Appeal specifically rejected in Ho Hoi Shing. 

85. Mr Hui also relied on the cases of R v Cox [1995] 2 Cr App R 513 and R v Van Dongen & anor [2005] 2 Cr App R 38, where notwithstanding that the alternative verdict of manslaughter based on a defence of provocation had not been left to the jury, the proviso had been applied.  We do not find these cases helpful.  Here, the question is how the jury’s analysis of the evidence and approach to their verdicts would have been affected by being directed on gross negligence manslaughter. 

86. In the provocation cases on which Mr Hui relies, the questions were far less nuanced and did not require reaching any conclusion on how the jury might have deliberated had they been properly directed.  In Cox, the Court of Appeal found that no reasonable jury, properly directed, could have concluded that a reasonable man would have been provoked to do what the appellant did. 

87. Likewise in Van Dongen, where the court concluded in respect of the appellant’s conduct that “no reasonable man could possibly have been provoked by the assumed acts to do what Mitchell van Dongen surely did.  Of that we are certain.”[2] It is to be noted that the court was alert to the dangers of going behind the jury’s verdict.  At page 647, paragraph 58 May LJ, in giving the judgment of the Court, said:

“We have to be very cautious in drawing inferences or making findings about how the jury would have resolved issues which were never before them. There is a danger of delving into the minds of the jury. We do not propose in this appeal to do this.”

88. There is nothing exceptional in this case which would enable us to conclude that the jury, if properly directed on the alternative verdict of gross negligence manslaughter, would inevitably have rejected it and convicted the applicant of murder.  We decline to apply the proviso.

Retrial

89. At the hearing Mr Hui indicated that if the Court was against his submissions, he would seek a retrial.

90. This is a very serious offence and it is clearly in the public interest that whether or not the applicant is guilty or not guilty of murder or manslaughter should be determined by the jury.  We order that the applicant be retried on a fresh indictment.

Conclusion

91. For these reasons we grant the application for leave to appeal against conviction and, treating the hearing of the application as the hearing of the appeal, we allow the appeal and quash the conviction.  We further order that the applicant be retried on a fresh indictment for the offence of murder and that pending that retrial he be remanded in custody.  The fresh indictment is to be filed within 14 days and the case is to be listed before the listing judge for the fixing of trial dates within 28 days. 

[1] See Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354.

[2] R v Van Dongen & anor [2005] 2 Cr App R 37 at 649, paragraph 64.