HKSAR v. LAM PUI FUNG

CAC C 93/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 93 OF 2009

(ON APPEAL FROM HCCC NO. 222 OF 2008)

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BETWEEN

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J U D G M E N T

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Hon Hartmann JA (giving the judgment of the Court):

Introduction

1.  On the afternoon of 16 March 2008, the applicant, being deep in debt, resolved to commit a robbery.  The victim he chose was a sex worker, Ms T, who entertained her customers in a small, single-room apartment in North Point. Having gained access to the apartment, the applicant robbed her of certain property and, in the course of that robbery, committed acts of violence on her.

2.  On the afternoon of the following day, a neighbour, unable to contact T, arranged for a locksmith to open the door to her apartment.  Inside, in a tiled cubicle that doubled as a toilet and shower and led off the single room, the neighbour saw T’s naked body slumped on the floor.  The neighbour summoned the authorities.

3.  An examination of the body by a forensic pathologist confirmed the cause of death to be suffocation.  It was further confirmed that T had died the previous day at about the time when the applicant gained access to her apartment in order to rob her.

4.  When he was arrested, although the applicant admitted causing T’s death, he denied having any intention at the time to kill her.  He was recorded as saying: “Ah Sir, I did not mean to kill her.  I only wanted to rob and take away some money.  It was not until later when I watched the news that I knew she was dead.”

5.  The applicant was charged with two offences; first, the robbery of T and, second, her murder.

6.  At trial, the applicant pleaded guilty to the charge of robbery.  He pleaded not guilty to the charge of murder but guilty to the lesser offence of manslaughter.  The prosecution did not accept the plea to the lesser offence.

7.  On 5 March 2009, at the conclusion of the trial before Mrs Justice Bokhary and a jury, the applicant was convicted of murder by a unanimous verdict.  He was sentenced to life imprisonment for the murder and to a concurrent sentence of four years and eight months’ imprisonment for the robbery.

8.  The applicant has sought leave to appeal his conviction of murder.

The prosecution case

9.  Returning to the events concerning the discovery of the deceased, after the neighbor had raised the alarm, the first person to check the body of the deceased for signs of life was a Senior Ambulanceman.  He testified that the naked body was slumped in a sitting position in front of the toilet, one leg splayed outwards with the head face down into the open bowl.

10.  A significant and highly unusual feature of the discovery was the fact that a number of towels were found on and around the head of the deceased.

11.  In this regard, the Ambulanceman testified that there was a number of towels placed on top of the head of the deceased.  These he removed.  There was also a further towel – perhaps more than one, the Ambulanceman could not recall – that was wrapped around the head of the deceased, covering the face from above the eyebrows down to the chin, covering the eyes, nose and mouth of the deceased.  In order to check for signs of life, this towel (or towels) was also removed.  The Ambulanceman testified that there were yet more towels jammed down into the toilet around the head of the deceased.  All the towels – a total of seven – were wet.

12.  The forensic pathologist who conducted the autopsy, Dr Lai Sai Chak, first saw the body of the deceased in the position in which it had been discovered, that is, slumped on the floor of the toilet, head facing down into the toilet bowl.  However, he arrived at the scene after the Ambulanceman had removed the towels.

13.  Dr Lai discovered a number of injuries to the head of the deceased. These included, first, a swollen haematoma some 7cm x 6.5cm in the area of the right forehead; second, a lost upper medial tooth; third, bite marks to the upper and lower surfaces of the tongue, these being indicative of the teeth clamping down on the tongue; fourth, bruising and swelling to the whole of the lower lip together with a partial tearing away of the frenulum of the lower lip and, finally, bruised swelling some 6cm x 3.5cm on the chin with abrasions on the underside of the tip of the chin.

14.  There were also injuries to the neck of the deceased, particularly two roughly parallel bands of reddish bruising on the front upper neck.  Dr Lai said that these two bands could have been made by the edge of the toilet bowl.

15.  As to the cause of death, noting that her face had been down into the toilet bowl and wrapped in wet towels, the forensic pathologist was of the opinion that the deceased had died of suffocation due to multiple levels of obstruction to the upper airway passages. 

The applicant’s version of events

16.  At trial, the applicant chose not to testify nor did he call evidence.  However, after his arrest he participated in three video-recorded interviews and also took part in a video-recorded reconstruction.  These were all admitted into evidence and formed the basis of the defence case.

17.  Concerning the video-recorded reconstruction, the defence complained that the applicant at the time had been manacled and that this had restricted his ability to demonstrate in unequivocal terms what had happened.

18.  By way of a summary, although in part ambiguous and inconsistent, the applicant’s version of what took place, as it emerged over the interviews and the reconstruction, was to the following effect.

19.  Having gained entry into the deceased’s apartment on the basis that he was a customer seeking sexual services, beset with nerves and not knowing how best to commit the robbery, the applicant said that he undressed and took a shower with the deceased.  It was only after they had showered, he said, when he was sitting on the side of the bed and the deceased was squatting next to the bed drying herself that he declared robbery.  He said that, as he declared robbery, he rose up and locked his arm around her neck from behind.  The applicant said that he did this because he was afraid she may call out for help.

20.  In his first interview, the applicant said that he did not know how long he held the deceased in this position.  He estimated that it was perhaps for “several minutes”.  He said that all along he was trembling, not knowing what to do.  In a later interview he admitted that, as he was much taller than the deceased, it might well have been that her feet had not always been touching the floor.  As he expressed it, she might have been “hung up”.

21.  The applicant said in his first interview that, while he held her in this way, the deceased probably “blacked out”.  He described her slipping to the floor, lying with her head on the bed.  He said that he did not know if she “had died or what”.

22.  He said that nevertheless he was minded to start looking for things to steal when he saw that she was moving.  Although the premises consisted of just one room with the toilet cubicle leading off it, the applicant said that he decided to drag the deceased into the cubicle because, if she was there, there was less chance of her being heard.

23.  The applicant said that he lifted the deceased into the toilet by the upper body so that her legs dragged along the floor.  The applicant then spoke of the deceased’s head dropping so that it struck the toilet bowl.  In one of the interviews, he said that, when he dragged the deceased into the toilet cubicle –

“… her head itself seemed to, like-like this, er, drop-drop down into, well, dropped down into the toilet bowl with a ‘boom’ sound.”

24.  At no time did the deceased say that he purposefully caused the impact between the deceased’s head and the toilet.  It is implicit in his interviews that either the head fell accidentally or, as he put it, because the deceased was so weak she allowed her head to drop, striking the toilet.  He accepted, however, that the impact was a forceful one.  He spoke of a ‘boom’ sound on more than one occasion.

25.  Certainly, the forensic evidence – the haematoma to the forehead, the bruising and swelling to the area of the mouth, the loss of the tooth and the injuries to the area of the chin – support the fact that, if there was such an impact, it was of such force as to cause significant hurt.

26.  On his own admission, the applicant made no attempt to remove the deceased’s head from the toilet.  He spoke of leaving her lying prone with her head in the toilet while he returned to the room, got dressed and then stole certain items that he found in the room.

27.  The applicant said that, when he was looking to make good his escape, he looked back into the toilet cubicle and saw that the deceased appeared to be moving and making breathing sounds.  Afraid still that she may raise the alarm he then immediately got some towels and, to use his own words, “stuffed them in like that with a view to making her stuck in so that she could not make any sound.”  The applicant spoke of doing so “offhandedly” but he admitted that he had stuffed the towels around the head of the deceased “very hard”.

28.  Although asked directly by the interviewing officer if he had wrapped a towel around the head of the deceased, the applicant did not accept that he had done so, denying it on one occasion and saying on another that he had probably not done so.

29.  This denial, in part equivocal, did not accord with the evidence of the Ambulanceman who removed the towels.  The officer spoke of at least one towel being wrapped around the head of the deceased covering her eyes, nose and mouth.  

30.  Although cross-examined, the Ambulanceman was not challenged as to the accuracy of this portion of his evidence.  At trial therefore the fact that one towel was wrapped around the deceased’s head was not in dispute.  That evidence, if accepted by the jury, indicated that the applicant’s actions had been more deliberate and more calculated than his assertion of a mere ‘off hand’ stuffing of towels around the deceased’s head.

31.  Returning to the course of events, the applicant said in his interviews that, immediately after he had stuffed the towels into the toilet bowl around, and on, the head of the deceased, he left the apartment.

32.  Surprisingly, if the applicant believed that the deceased was not seriously hurt and was therefore in a position within a short period of time to raise the alarm, he did not depart the area.  The evidence showed that he remained in the area and visited a nearby betting centre to gamble.

The grounds of appeal

33.  On behalf of the applicant, Mr McGowan advanced the single ground of appeal that the applicant’s conviction was unsafe and unsatisfactory.  He contended that it was unsafe and unsatisfactory because the judge’s summing-up to the jury was inadequate, unbalanced and unfair.  There were three reasons why it was so:

34.  First, and principally, there was a failure on the part of the judge to set out the nature and extent of the defence case.

35.  Second, there was a failure on the part of the judge to direct the jury that the applicant’s good character should be taken into account as supporting his credibility.

36.  Third, there was a failure on the part of the judge to give a direction in terms of R v Liberato & Others (1985) 159 CLR 507 to the effect that, if the jury were of the view that the defence put forward by the applicant is or may be correct, then he was entitled to be acquitted of murder.

The first ground: the failure to set out the defence case

37.  To understand this complaint, it is necessary first to say something more of the nature of the prosecution case.

38.  The prosecution case was founded on two bases.  First, the evidence of the applicant’s admitted acts of violence on the deceased.  Second, the evidence of the findings of the autopsy report that set out the nature and degree of the injuries sustained by the deceased.  It was the prosecution case that, when considered together, this evidence gave rise to the single compelling inference that, at the time when he inflicted the injuries on the deceased, the applicant must have intended to kill her or to cause her really serious bodily harm.

39.  In his autopsy report, Dr Lai spoke of the cause of death in the following terms:

“… the deceased died of suffocation due to upper airway obstruction at multiple levels (face wrapped in wet towels and pushed inside toilet bowl which was filled with water; the lower jaw, base of tongue and voice box pressed against edge of toilet bowl).”

40.  In respect of his finding of death by suffocation, Dr Lai made the following remarks in his report:

“The posture of the deceased was that any towel over the face would be in contact with water after the head was lowered. Even if the towels were dry when initially applied, they would become soaked with water rapidly once the towel came into contact with water inside the toilet bowl (more rapidly so if flushing of the toilet or watering with shower hose were deliberately done). Such wrapping with wet towels, together with the face being pressed against the inner wall of the toilet bowl, would cause fatal suffocation. Facial dissection showed small, minor bruising to cheekbone areas and left jaw muscle, suggesting pressure applied onto the face when the deceased was alive (by either the assailant’s fingers, or the victim's own fingers in an attempt to remove the towels), which indicated that the wrapping was done while the deceased was alive.

There was a prominent bruised swelling on the forehead, which could be the result of bumping against any flat surface such as the wall, the cistern, or the edge of the toilet bowl. There was also bruised swelling of the chin, and bite marks on the tip of the tongue that was consistent with a heavy blunt impact to the chin, which was probably caused by bumping against the edge of the toilet bowl.

The lower lip was bruised and swollen, and there was also a laceration to the frenulum of the lower lip (i.e. the attachment of the lip to the gum at the midline). The bruised-swelling was apparently caused by a heavy impact, which probably also knocked off an upper incisor. The laceration was the result of the lower lip being pulled towards the chin, causing the frenulum of the lip to be torn. Given the scenario, this pulling could be caused by the lower lip being caught by the edge of the toilet bowl when the head was pushed downwards into the bowl.

There were broad parallel bands of reddish bruises across the neck, which appeared to be caused by the edge of the toilet bowl.  Bruising on the neck was superficial and dissection of neck structures did not show any deep bruising or swelling, and it appears that pressure on the neck was relatively static and there were no heavy impacts to the neck.  Nevertheless, there was pressure on the neck that would obstruct the airway at base of tongue and voice box levels, and would contribute to suffocation.”

41.  Dr Lai was therefore of the opinion that the injuries to the head of the deceased had been inflicted while she was still alive.  He was of the opinion that the deceased would have survived “for a few minutes” after sustaining these injuries.

42.  Dr Lai was further of the opinion that the deceased, in the position in which she was found with her head lowered into the bowl and her face pressed against the inside of that bowl, would have died of what is called ‘postural suffocation’ whether or not there was towelling wrapped around her head.

43.  As to how it was in these unusual circumstances that the deceased was brought to her death, Dr Lai suggested two possible causes: either because her head was held in the toilet bowl by her assailant or because the deceased had been knocked unconscious by the impact of her head against the bowl and in her unconscious state, with her neck on the rim of the bowl and her head lowered into the bowl itself, had suffocated.  In respect of the second possibility, while Dr Lai did not reject it outright, he considered it “rather unlikely” as there was no evidence of intracranial injury.  This section of Dr Lai’s report was as follows:

“The overall pattern of injuries suggested that the assailant had wrapped the head of the deceased in towels and pushed her head (face down) into the toilet. The impacts to her forehead, lower lip and chin were heavy and it was possible that the assailant had used his own body weight in the push. The deceased was alive while this was done, as the degree of swelling noted at the forehead, lower lip and chin would require the deceased to have survived for a few minutes between sustaining these injuries and subsequent death. During this survival period, to prevent the deceased from leaving the toilet bowl and removing the towels, the assailant probably would have to maintain her in that posture by holding her head into the toilet bowl using his own body weight (unless the deceased had been knocked unconscious by the impact of the forehead, which seemed rather unlikely as there was no evidence of intracranial injury).”

44.  Dr Lai’s hypothesis as to the alternative causes of death was of course no more than that: a set of propositions based on his findings.  For that reason, he made it clear that he was doing no more than stating what was “possible” or what the overall pattern of injuries “suggested” may have led to the death of the deceased by suffocation.

45.  That being said, Dr Lai’s remarks, coming from an expert witness, constituted powerful evidence in support of the prosecution case, the more so as Dr Lai considered that the first of his propositions, namely, that the deceased’s head had been deliberately held in the toilet bowl until she suffocated, was more likely than the second.

46.  By contrast, the defence case was founded on what the applicant had told the police at the time of his arrest, namely, that he had only intended to rob the deceased and had never intended to kill her, taken together with the explanation of his actions given in the course of his interviews and reconstruction.  What emerged from the interviews and reconstruction, defence counsel told the jury, was that the deceased’s death had been brought about by the applicant’s “ inadvertence”, that is, by his panicky attempts to prevent her raising the alarm: actions which he appreciated would inevitably cause the deceased some harm but certainly not her death nor even any really serious harm.

47.  On a more extended basis, the defence case relied on the jury at least giving to the applicant the benefit of the doubt concerning the following.  First, that the applicant had never pushed the head of the deceased into the toilet nor held it there.  Second, that the deceased’s head had been dropped inadvertently so that it struck the toilet bowl, the head coming to rest in the bowl with the neck resting on the rim of the bowl, and that the applicant had done no more than leave the deceased in that position, having no reason to believe that she may suffocate.  Third, conceding that, if the applicant had wrapped a dry towel around the head of the deceased, he had used other dry towels to hold her head in a fixed position in the toilet bowl for the single purpose of preventing her from crying out until he had been able to make good his escape, there being no intention in carrying out these actions to cause her any further harm.

48.  For the jury to accept that matters may have happened in this way, it was of the greatest importance for the defence to demonstrate that Dr Lai’s autopsy report was capable of being viewed in a manner consistent with the applicant’s version of what had happened.  For this reason, Dr Lai was subjected to extensive cross-examination by defence counsel.

49.  No issue was taken with Dr Lai’s identification of the deceased’s injuries or the cause of death itself but considerable issue was taken with his hypothesis as to the possible ways in which the deceased may have been brought to her death.

50.  In order to put Dr Lai’s hypothesis into context, it was put to him, and he agreed, that he had made his remarks in his report in ignorance of all of the available evidence, particularly the applicant’s version of events contained in his interviews and reconstruction.  It was further put to him, and again Dr Lai agreed, that his hypothesis was no more than that, a set of propositions drawn from his findings as to what may possibly have happened.

51.  To avoid the jury concurring with Dr Lai’s most likely hypothesis, namely, that the overall pattern of injuries suggested that the applicant had pushed the deceased’s head face down into the toilet bowl and held it there until she suffocated, it was necessary for the defence to demonstrate that the injuries were also consistent with the applicant’s version of what had happened.  In this regard, among other matters, the following arose during the course of cross-examination:

i.  Dr Lai confirmed that there was no evidence of deep bruising in the neck and throat and that the hyoid bones remained intact.  This was a significant indicator that no heavy pressure was applied to the back of the deceased’s neck while her head was in the toilet: pressure applied, for example, to prevent the deceased from removing her head from the toilet bowl.

ii.  In light of this, Dr Lai agreed that the probability was that the deceased had either been pushed or had fallen so that her head went into the toilet bowl, the latter probability being consistent with the defence case.  In being pushed – or in falling – the chin of the deceased would have struck the rim of the toilet bowl, the head then slipping deeper into the toilet bowl so that the front of the neck came to rest on the rim.

iii.  In his hypothesis, Dr Lai had said that the possibility of the deceased being knocked unconscious by falling and hitting the toilet bowl, and in that condition dying of postural suffocation, seemed “rather unlikely” as there was no evidence of intracranial injury.  When asked if it was nevertheless a possibility, Dr Lai replied: “yes, definitely”.  He further conceded that a person may be knocked unconscious without suffering any form of intracranial injury.

iv.  Being unaware of the applicant’s assertion that there had been a struggle of some intensity in the bedroom and that thereafter he had dragged the deceased semi-conscious into the toilet cubicle, Dr Lai accepted that certain of the deceased injuries may have been sustained in the course of those events.  In particular, having suggested in his report that the deceased’s lower lip may have been torn by being caught by the edge of the toilet bowl when her head was pushed down into the bowl, he conceded that the injury may also have been occasioned when the deceased was being held from behind in a stranglehold by the applicant.

v.  As to the wrapping of a towel around the deceased’s face and the use of other towels to fix the deceased’s head in the toilet bowl, it was the defence case that the applicant used dry towels, there being no evidence that he had intentionally wet them.  The towels would therefore have been dry when first applied and would have become wet over a period of time either because the toilet had been malfunctioning, as suggested by the Ambulanceman who initially examined the deceased, or by osmosis with one or more towels touching the water in the toilet bowl.  In this regard, Dr Lai accepted that the use of an already wet towel around the face of the deceased would “definitely” have made breathing more difficult than the use of a dry towel.

52.  On behalf of the applicant, Mr McGowan submitted that these (and other) concessions made by Dr Lai were critical to the defence case in that, in light of these concessions, the forensic evidence was consistent, or at least largely consistent, with the applicant’s version of events.  Accordingly, he submitted, it was incumbent on the judge to give assistance to the jury as to the nature and extent of the concessions made by Dr Lai and their relevance to the defence case.  This, however, the judge failed almost entirely to do.  In the result, there was a failure to set out an important element of the defence case.  This, it was submitted, amounted to a material misdirection by omission, one that deprived the applicant of a fair and balanced summing-up.

53.  We agree with Mr McGowan’s submission that the various concessions made by Dr Lai during his cross-examination, insofar as they were capable of being read as being consistent with the defence case, were of the greatest importance to the defence case.  It may be that in the event the jury would have thought little of the defence thus deployed but that is not point.  In the circumstances, it was incumbent on the judge to give assistance to the jury as to the nature and extent of the concessions made by the forensic pathologist and their relevance to the defence case.  We must also agree with Mr McGowan that the judge failed to render this assistance to the jury.

54.  Early in her summing-up, the judge correctly instructed the jury that the central issue for their determination was one of intent:

“So your task is to decide whether you feel sure, on the whole of the evidence, that the accused’s intent was to kill or at least to cause really serious injury.”

55.  Concerning the evidence of Dr Lai, the judge gave the jury the standard direction as to how they were to approach expert evidence.  She then invited the jury to consider Dr Lai’s report which had been formally adopted as his evidence-in-chief and copies of which were on the possession of the jury.  The judge took the jury through the report.  In particular, she concluded by reminding the jury of Dr Lai’s hypothesis as to how the deceased may have been suffocated, the more likely scenario – in his report – being that her head had been held in the toilet by her assailant:

“The impact to her forehead, lower lip and chin was heavy. It is possible that the assailant had used his own body weight in the push. The deceased was alive while this was done, as the degree of swelling noted at the forehead, lower lip and chin would require the deceased to have survived for a few minutes between sustaining these injuries and subsequent death. During this survival period, to prevent the deceased from leaving the toilet bowl and removing the towels, the assailant probably would have had to keep her in that posture by holding her head into the toilet bowl using his own body weight. This is unless the deceased had been knocked unconscious by the impact to the forehead, which seems rather unlikely as there is no evidence of intracranial injury.”

56.  In this latter respect, as we have observed, Dr Lai had qualified his hypothesis in the course of cross-examination by accepting that it “definitely” remained a possibility that the deceased may have been rendered unconscious by falling and hitting her head on the toilet even though there was no evidence of intracranial injury.  Dr Lai had accepted that a person may be knocked unconscious without evidence of any such injury.  At no time, however, was the jury reminded of this qualification by the forensic pathologist nor of other significant qualifications made by him.  The jury was reminded of one qualification only, one so general in nature that it was of limited significance:

“As to a person being wrapped around the face with a dry towel, Dr Lai of course agreed when defence counsel put it to him, at the end of the cross-examination, that if the towel is not tight, the person may or may not die and that it depends on a whole lot of things. ”

57.  In respect of Dr Lai’s evidence, it was for the judge not only to outline the nature and extent of at least the more important concessions and/or qualifications made by the forensic pathologist but to assist the jury in two respects, first, as to how it was suggested that those concessions and/or qualifications supported the defence that the applicant had no intention to kill the deceased or cause her serious harm and, second, how they may approach that evidence.

58.  This was not done.  Instead, as to the effect of Dr Lai’s evidence in the light of his various concessions and/or qualifications, the judge limited her directions to the following:

“Prosecuting counsel and counsel for the accused have addressed you on the weight and effect of the evidence. Do give careful consideration to their speeches. It is only very recently that you heard their speeches. You will remember them clearly. What has been urged upon you in counsels’ speeches as to the facts is ultimately for you to accept or reject as you see fit.”

59.  Later in the summing up, the judge went on to say:

“When you consider that evidence [the evidence of Dr Lai], you will of course do so bearing in mind everything said by defence counsel in cross-examination and in his final speech with a view to disputing and attacking Dr Lai’s evidence and, I should add, even attacking Dr Lai’s impartiality. So you consider Dr Lai’s evidence in light of all of that.”

60.  With respect to the judge, a direction to the jury that they should remember what counsel said and give it careful consideration was inadequate.  In the present case, as we have acknowledged, the circumstances in which Dr Lai had prepared his report taken together with the concessions and/or qualifications that he had been prepared to make during the course of cross-examination, were of critical importance to the defence case.  The cross-examination of Dr Lai had been lengthy and complex.  As such, as we have said, it was incumbent on the judge to render assistance to the jury in the form that we have outlined.  This regrettably the judge failed to do.  The necessity to do so was made all the greater by the fact that the jury had copies of Dr Lai’s report which, of course, did not contain references to the concession made in cross-examination.  In the result, there was a failure to put the defence case fairly and accurately before the jury for its consideration.  

61.  On this ground alone the application for leave to appeal must be granted and the appeal allowed.

62.  Before leaving this first ground of appeal, it is necessary to refer to one further matter.

63.  At the conclusion of evidence and before closing speeches, noting that there had been no defence evidence, the judge requested the assistance of defence counsel in identifying the salient features of the applicant’s defence. She asked that it be provided to her in the form of ‘bullet points’.  In particular, the judge noted that in cross-examination of Dr Lai reliance appeared to have been placed on parts of the applicant’s video-recorded interviews and the reconstruction.  Counsel undertook to assist the judge.  In the event, he provided a half page document entitled: “Bullet points from the defence closing for the assistance of the court”.  The document, however, offered the judge no assistance.  In respect of Dr Lai’s evidence and the issues raised during his cross-examination, the document condescended to no particularity whatsoever, saying simply:

“5.  The significance of Dr Lai’s evidence and why it is flawed on the grounds that it is conjectural, unscientific, inaccurate and possibly influenced by the nature of the job he holds.

6.  The relevance of the VRIs [the video-recorded interviews] and reconstruction.”

64.  The failure of counsel to assist the judge as she had requested and as counsel had agreed was regrettable.  However, the judge ought then to have insisted on proper assistance and the failure of that assistance did not excuse the judge from her duty of summing-up in the manner to which we have referred.

The two remaining grounds of appeal

65.  In light of our determination in respect of the first ground of appeal, it is not necessary to consider the two remaining grounds.

The proviso

66.  The only issue remaining is whether this is a suitable case in which to apply the proviso.  Counsel for the respondent invited us to do so on the basis that the evidence against the applicant was so strong as to make a conviction for murder inevitable.

67.  In our view, this is not a proper case for the application of the proviso.  Weak though the defence may be said to be, the applicant was nevertheless entitled to have properly left for the jury’s consideration factors which he said went in support of that defence.  This was not done.

Conclusion

68.  For the reasons given, we grant the applicant leave to appeal and, treating the hearing of the application as the appeal, we allow the appeal, quashing the conviction for murder.

69.  We invite submissions as to the issue of a retrial, the submissions to be filed within 14 days.  Pending our decision on a retrial, the applicant shall remain in custody.