R. v. LEE SING CHAN, WILSON @ LEE WAI SUN

IN THE COURT OF APPEAL

1994, No.572

(Criminal)

___________

_________________

J U D G M E N T

_________________

Liu, J.A. (delivering the judgment of the court):

1. The appellant was convicted of murder by a majority verdict. He was sentenced to life imprisonment. At the trial the appellant admitted that he had killed his aunt Madam Fu on 16 August 1982. The appellant was then nineteen. The appellant fled Hong Kong and managed to stay away for almost 12 years before he was apprehended in Sweden. The appellant was duly brought back to Hong Kong and charged with the murder of his aunt.

2. In the forefront of the prosecution case was the appellant's intent to kill or cause really serious injury. Of the two issues of diminished responsibility and provocation raised by the defence, the judge wound up his direction on the latter in these terms:

"If you are not satisfied that he was provoked or if you think he might have been provoked, then you can only convict him of manslaughter and not murder."

3. That is the standard direction as to burden of proof in provocation. See R.v. Lai Hon-man, [1993]1 HKCLR 115 at p. 117 lines 21-26. But no directions were given to the jury that they must first be sure of the existence of all the ingredients in the offence of murder, including the necessary intent before proceeding to consider provocation for reducing murder to manslaughter. See Lee Chun Chuen v. R [1963] A.C. 220 P.C. On the appellant's admission to the killing, the remaining element of the offence of murder to be proved by the prosecution was intent. Under ground 2(a) of the Grounds of Appeal, Mr Mullick, counsel for the appellant submits that the omission had in effect left with the jury the suggestion that once they were satisfied beyond reasonable doubt of the requisit intent, the appellant must necessarily fail on the issue of provocation. The judge did not give the usual sequential directions that if the jury were sure that the elements of murder had been proved, they should not convict unless the prosecution negatived provocation. We are unable to say that the jury might not have gained the impression postulated by Mr Mullick, particularly in the light of what the judge said to the jury:

"The only issue you are being asked to decide is the mental element of the offence of murder";

"if you are not sure that (the appellant) had the necessary intent to kill or to cause grievous bodily harm to the victim at the material time when (the appellant) struck her, whether as a result of diminished responsibility, provocation, or for any other reason at all, you should return a verdict of not guilty of murder but you should return a verdict of guilty of manslaughter on his own admission of the unlawful killing of the victim."

4. We would allow the appeal on this ground.

5. In these circumstances we find it unnecessary to deal in detail with the remaining grounds of appeal save to note that we see no reason to fault the judge's ruling on the admissibility of the medical evidence. Nor do we see any basis for criticising the judge's direction on lies which, if anything, was favourable to the appellant.

6. We allow the appeal and quash the conviction for murder.

[The Court heard the submissions of counsel as to whether a new trial should be ordered.]

Mortimer JA:

7. We have given very anxious consideration to the question whether in the particular circumstances of this case we should order a retrial or whether we should substitute a verdict of manslaughter on the grounds of provocation.

8. It is now 13 years since the killing and although the appellant is to blame for most of this delay when we balance the public interest and the interests of justice together with - and this must fall into a less important category - the interest of the appellant himself, we do not think the public interest will best be served by the ordering of a new trial. We emphasise, however, that this decision is one on the particular facts of this case. Inevitably a new trial will be particularly concerned with the mental state of the accused (diminished responsibility) and the provocation alleged at the time of killing. Further medical reports would be necessary. This evidence would seek to assist the jury to assess that state of mind after all these years.

9. In those circumstances having quashed the conviction for murder we substitute a conviction for manslaughter on the grounds of provocation and it falls for this court to deal with sentence.

[After hearing Counsel the Court imposed a sentence of 8 years imprisonment.]