THE QUEEN v. KWOK WAI KEUNG

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JUDGMENT

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Hon. Yang, C.J.:

1. This is an application for leave to appeal against conviction of murder.

2. The Crown's case against the applicant is simple and straightforward. On the 12th August 1988 at 3 p.m. in the afternoon, the applicant and the victim who were hitherto on friendly terms, were in an apartment. For no apparent reason, the victim suddenly got into a rage, abused and attacked the applicant. Both the applicant and the victim at the time were affected by having taken a quantity of pep pills. In a fight that ensued, the applicant picked up a knife which he described in his evidence as "an article", and stabbed the victim some 19 times, seven of these blows being of a serious nature. The victim died as a result of the injuries received.

3. It was the applicant's evidence that he did not know what actually happened, he being in a state of confusion for being under the influence of drug, and he did not know of the existence of the knife, indeed calling it "an article" in his evidence.

4. Prior to the Crown's final address to the jury, the judge indicated in the presence of the jury that it seemed to him that the present case was one of either murder or nothing, but conceded that it was necessary for him to see what defence counsel had to say. In his direction to the jury, however, he put all the necessary issues which he explained in detail. He addressed the jury on the question of intention, the question as to whether the applicant was able to form the specific intent, and whether he had been under the influence of drugs. He also explained the issues of self-defence and provocation.

5. It is argued on behalf of the applicant today that the whole tenor of the summing-up seemed to indicate that the only possible defence was one of self-defence and that the direction on provocation was nothing more than what has been described as a copybook type of direction to the jury.

6. The first ground of appeal complains that the judge's remark prior to the Crown's final address to the jury which I have just referred to, was such a strong comment that the jury might well have been misled. We do not agree. The judge in his summing-up quite clearly put the issue of provocation to the jury and we do not think there is a possibility that the jury might have thought that it was indeed a case of either murder or nothing.

7. The second ground of appeal alleges that the learned trial judge erred in his direction to the jury on the Crown's burden of proof. At p. 25 of the summing-up, the judge explained to the jury that the so-called benefit of the doubt to be given to an accused was not in fact a benefit, but there is a duty upon a judge or a jury that if the prosecution have not proved something so that the jury was sure, then they must acquit. Taken that passage in its correct context, we do not think that this direction could be faulted in any way.

8. The third ground of appeal is that the judge failed to give a sufficient direction to the jury on the question of intent, particularly the intent at the time when the fatal blows were struck, and also in view of the fact that he might have been in a drugged condition at the material time. On p. 17 of the summing-up, the judge quite clearly explained to the jury that they had to take into consideration that if the applicant had in fact been in a drugged condition, and that he could not have intended that which was alleged against him, then intention was not proved and they must acquit.

9. Still on the question of specific intent, the judge on the same page said this: "Here the defendant used a knife to kill and the prosecution, therefore, say that on this aspect if he did not have the necessary specific intent, nevertheless, this was an unlawful killing amounting to manslaughter." In the circumstances, we find nothing of substance in this ground of appeal.

10. The fourth ground of appeal criticizes the judge for failing to point out to the jury the correlation between his direction on the law in the context of provocation to the evidence before the court. In a straightforward and simple case as this was, the jury in our view could not have been confused as to what acts might have constituted provocation. The judge discussed in detail the defence, including the evidence that it was the victim who launched an unprovoked attack on the applicant. We do not think there could be a possibility that the jury might have failed to understand what facts might have constituted provocation in the particular circumstances of this case.

11. It was then submitted that there was a contradiction between the applicant's statement and his evidence as to the location of the knife. According to his statement, the applicant said that he had prior knowledge that there was a knife under the victim's mattress as he had heard of this a few days before. However, in the evidence the applicant said that the victim moved to the cubicle in question from another cubicle in the same apartment and placed the mattress there on the morning of the killing. In our view, the alleged contradiction is perhaps more apparent than real. It is in our view not so clearly and definitely a contradiction that requires a resolution of the alleged conflict between the evidence and the statement.

12. The final ground of appeal is simply that the verdict was unsafe and unsatisfactory.

13. Reading the summing-up as a whole, we do not think the learned trial judge could be faulted in his direction to the jury in any way. The application is accordingly refused.