HKSAR v. CHAN CHUNG FAI

CACC 241/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 241 OF 2013

(ON APPEAL FROM HCCC NO. 402 OF 2012)

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J U D G M E N T

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Hon Lunn VP (giving the judgment of the court):

1. The applicant seeks leave to appeal against his conviction on 18 June 2013, after trial by Deputy High Court Judge Wright and a jury, of the murder of Chan Ping Kwong on 13 January 2012 at Room 3018, Lung Yat House, Lower Wong Tai Sin Estate.

THE TRIAL

The prosecution case

2. The prosecution case was that at about 11:30 p.m. on 13 January 2012 the applicant had killed his father at their home at Room 3018, Lung Yat House, Lower Wong Tai Sin Estate, where they resided with Madam Shek, the deceased’s wife and mother of the applicant.  There was no dispute that the applicant was drunk at that time.  A blood sample from the applicant about 01:30 a.m. on 14 January 2012 was found to contain 224.5 mg of alcohol per 100 millilitre.  On the premise that the forensic pathologist’s estimate of the time of death of 11:30 p.m. on 13 January 2012 was accurate, Dr Tse Man Li, a consultant toxicologist, expressed the opinion that at that time the blood alcohol concentration of the applicant would have been 255.8 mg per millilitre.[1]  As the Judge observed, that was more than three times the legal limit in Hong Kong for driving a motor vehicle.

3. Mr Tao Kin Leung, a colleague of the applicant at Tamura Corporation in Kwai Chung, testified that in the early evening of 13 January 2012 the two of them and other colleagues had attended a company dinner at Metroplaza, Kwai Fung.  Although they were seated at different tables, he noticed the applicant was drinking red wine.  When he encountered the applicant in the washroom he observed that he was unable to replace a Sim card in his telephone, that he looked dumb and was unable to speak.  He helped the applicant to return to a table and sat with him.  Thereafter, the applicant consumed no more alcohol, merely sitting with his head bowed down.

4. At sometime after 9:00 p.m., Mr Tao and another person helped the applicant to board a taxi.  Since the applicant was unable to provide him with his home address, the applicant telephoned the deceased and, having been provided with that address, accompanied the applicant home.  The applicant did not speak during the journey.  Following their arrival at Lung Yat House at about 10:00 p.m. [2], Mr Tao informed the deceased by telephone of their arrival. A security guard told Mr Tao that the applicant lived on the 30^th floor. However, he waited for the arrival of the deceased and the three of them travelled in the lift together.  The applicant pressed the lift button for the 30^th floor, having first pressed the wrong button.  At the deceased’s request he helped the applicant into his bedroom where he left him lying on the bed with his feet hanging over onto the floor.  In response to Mr Tao saying goodbye, the applicant raised his hand but did not say anything.  Then, Mr Tao left the premises.  He was seen on CCTV returning in the lift to the ground one or two minutes after he had gone up to the premises.[3]

5. When Madam Shek Kwai Chun returned at about midnight on 13 January 2012 she discovered the deceased dead surrounded by blood on the living room floor.  The applicant was lying on his bed in his bedroom smelling strongly of alcohol.  Although she called his name several times he did not respond.  Mr Ng Pui Hung, Madam Shek’s son-in-law said that he went to the premises having received a phone call from Madam Shek shortly after midnight.  He arrived there about 10 minutes later.[4]  The applicant was still lying on the bed smelling strongly of alcohol.  He did not respond to being tapped on his body or to his name being spoken.  Mr Ng called the police, who arrived shortly afterwards, followed by ambulancemen.  They determined that the deceased was dead.

6. PC 53661, Yung Ying Wah arrived at the premises at about 00:20 on 14 January 2012. [5]  His attempts to rouse the applicant failed.  SPC 53038, Luk Chun Hing arrived at the Lung Yat House at about 00:32. [6]  Later, he entered the premises and found the applicant lying on his bed with his eyes closed.  However, the applicant responded by providing his name when asked to do so.  When asked for his identity card he pointed to a wallet.  SPC Luk noticed a blood stain on the chest of the long-sleeved upper garment worn by the applicant and on his hands, left foot and face.  It was an admitted fact that the blood on the upper garment and a sock worn by the applicant came from the deceased.[7]  At 00:49 he arrested the applicant for the murder of his father and administered the words of caution.  The applicant remained silent.

7. Having been taken to Queen Elizabeth Hospital, the applicant was seen by Dr Au Yeung at around 01:30 a.m. on 14 January 2012.  He detected the smell of alcohol on the applicant, who told him that he had drunk alcohol and, on returning home, quarrelled with his father.  The applicant said that he had forgotten what happened after that. In those circumstances, Dr Au Yeung took a sample of the applicant’s blood to test the blood/alcohol level.  He said that the applicant’s speech was coherent and that he was oriented.  He had recorded in his notes as a possible and provisional diagnosis, “Suspected?  Psychosis”.  He ordered a psychiatric assessment.  In those circumstances, he did not permit SPC Luk Chun Hing to read his notebook record to the applicant.

8. DPC 413, Wai Ka Wa said that he conducted a record of interview after he had administered the words of caution to the applicant, of which he made a written record.[8]  The interview began at 17:21 and concluded at 21:45 on 16 January 2012.  The applicant said that he had become drunk at his company’s annual dinner on the evening of 13 January 2012.  He had no idea how he returned home.  However, he remembered Mr Tao sitting on the sofa in the living room.  Then, he went to his bedroom and slept.  When he awoke he went into the living room where he found his father lying on the floor surrounded by blood.  He kicked him, but he made no response.  So, he returned to his bed and slept until awoken by his mother.

9. Superintendent Chow Tak Choi testified that the applicant had written a statement in response to being charged in the afternoon of 17 January 2012 with the murder of his father in which he asserted “I was already very drunk.  Because I was not sober, but perhaps I was irritated by my father that I mistakenly beat him.  I now feel great remorse…..” [9]

10. Dr Tsang Chak Chi, a forensic pathologist, conducted an autopsy on the deceased and was of the opinion that he had died from traumatic head and neck injuries.  He had sustained at least 40 separate blows, of which 23 were to his head and neck.[10]  They were delivered with significant force and were compatible with having been delivered by two broken stools found next to the body of the deceased.[11]

11. Dr Tse Man Li testified in respect of the effect of alcohol consumption on persons.  Different people were affected differently.  He said that the established link between alcohol and violence was called “alcohol induced aggression”.  Some persons were more susceptible to violent conduct after the consumption of alcohol than others.  He said that such a violent reaction could be triggered by blood alcohol concentrations of between 200 and 300 mg.[12]

The defence case

Voir dire

12. The defence challenged the admissibility of the oral statements made by the applicant to Dr Au Yeung, on the basis that the applicant was under the influence of alcohol, the written record of interview compiled by DPC Wai and the answer made by the applicant when charged with murder.  The former written record was challenged on the basis of oppression and threats and the latter on the basis of an inducement and threats.  The applicant testified on the special issue.  The judge ruled all three pieces of evidence admissible in the trial.[13]

Trial before the jury

13. The applicant did not testify before the jury.  However he called Dr John Wong, a psychiatrist, to testify in the defence case.  He addressed two issues.  First, it was his opinion that given the undisputed level of intoxication of the applicant, as evidenced by his blood alcohol level, the applicant would have suffered motor skill impairment and a decrease in strength such that the applicant would not have had the strength to inflict the injuries sustained by the deceased.[14]  Secondly, in his opinion it was possible that the applicant was suffering from “alcohol idiosyncratic intoxication” (“AII”), not alcohol intoxication.  AII was triggered by consumption of a small quantity of alcohol and was followed by irrational violence, stupor and amnesia.  That could have led to the applicant being in a state of automatism.  Counsel for the applicant advanced both those matters in his closing speech to the jury.[15]

14. Reliance was placed by the applicant on the fact that he was a man of good character aged 40 years [16], of whom Mr Tao Kin Leung had said that he was of “gentle disposition” and the allegation, if true, was out of character [17] and of whom he, Madam Shek Kwai Chun and Mr Ng Pui Hung said that they had never seen him lose his temper.[18]  Further, that Madam Shek Kwai Chun and Mr Ng Pui Hung said respectively that the applicant’s relationship with the deceased was “very good” and “good”.[19]  Finally, reliance was placed on Madam Shek Kwai Chun’s evidence that, although the applicant had become drunk on many occasions, he had not used violence towards the deceased on those occasions.[20]

GROUNDS OF APPEAL AGAINST CONVICTION

15. In the 1^st and 2^nd grounds of appeal against conviction advanced on behalf of the applicant, Mr Philip Wong submitted that :

“ Despite the Learned Trial Judge correctly summed up the purported defence of voluntary drunkenness (whether it did induce automatism or not) to the offence of murder, but he failed to direct the jury that the same purported defence was no defence to the lesser and alternative offence of manslaughter, and thus misdirected the jury that they could not return an verdict of manslaughter against the applicant. Furthermore, the Learned Trial Judge erred in directing the jury that the verdict of guilty of manslaughter was in law not opened to them when the jury specifically asked the court to give further direction in that regard sometime after they retired for deliberations for reaching the verdict.

The purported defence of voluntary drunkenness raised in the trial was that it also induced the applicant to act in a state of automatism.  In that regard, the Learned Trial Judge also erred in failing to direct the jury that in the event that they did not accept that the voluntary drunkenness did induce the applicant to act in a state of automatism, they would still have to accept that the purported defence was a defence to murder but not a defence to manslaughter.”

16. In exchanges between Mr Philip Wong and the Court in the course of his oral submissions it transpired that those grounds of appeal were intended to raise the following issues:

•     that the judge had erred in failing to leave to the jury the alternative verdict of manslaughter, in particular manslaughter by an unlawful and dangerous act;

•     that, if the judge had left the alternative verdict of manslaughter to the jury he would have directed them that if, because of the evidence of the applicant’s voluntary drunkenness, they were not satisfied that it was proved that the applicant formed the ‘specific intent’ required for murder, namely to kill or cause grievous bodily harm, whilst that was a defence to the charge of murder it was not a defence available in respect of the alternative offence of manslaughter, that being an offence of ‘basic intent’ only.

The admissibility of the out-of-court statements and responses of the applicant

17. It was contended that the judge had failed to rule on the admissibility of SPC Luk Chun Hing’s post-recorded notebook entry of the applicant’s response of silence in face of having been arrested and cautioned at 00:49 on 14 January 2012 at the family home, Room 3018, Lung Yat House, Lower Wong Tai Sin Estate for the murder of his father, Chan Ping Kwong.  Further, it was said that the judge erred in allowing the notebook to be adduced into evidence.

18. Then, it was submitted that the judge had erred in ruling admissible a record of interview of the applicant conducted by SPC Luk Chun Hing from 17:21 to 21:45, of which a written record was made in the police officer’s notebook and signed by the applicant.  Complaint was made that the judge had failed to resolve the inconsistency between the record, which stated that the applicant agreed to the content of the post-record of the arrest and cautioning of the applicant, whereas in evidence SPC Luk Chun Hing testified that the applicant had said only that he understood.  Further, during the service on the applicant of the Notice to Persons in Custody, SPC Luk Chun Hing had failed to remind the applicant that he had the right to remain silent and to decline to be interviewed.  Finally, during the interview itself SPC Luk Chun Hing had misled the applicant repeatedly by failing to inform him of the whole panoply of his rights in respect of contact with a lawyer by informing him repeatedly merely that the right was to be accompanied by a lawyer during that interview.

A CONSIDERATION OF THE SUBMISSIONS

An alternative verdict: manslaughter

19. In advance of closing speeches and the summing up, the judge provided to counsel a draft of his proposed directions in respect of murder and automatism.[21]  Mr Dunn appeared for the prosecution and Mr Cahill for the applicant.  On the morning of 17 June 2013, the defence case closed with the testimony of Dr Wong Yee Him.  There then followed a discussion between counsel and the judge in respect of the proposed directions.[22]  Clearly, as was obvious to everyone, the judge proposed directing the jury in respect of murder only.  There was no discussion about an alternative verdict of manslaughter.  In their closing speeches, counsel addressed the jury on the basis of those directions.  Then, the judge summed up on that basis and the jury retired to consider their verdicts at12:43 p.m.

20. At 3:08 p.m. the Court was reconvened in the absence of the jury for the judge to consult counsel as to his response to two written questions that had been posed by the jury, namely:[23]

Question 1

“ What would be the court’s position with respect to the charge of manslaughter of the defendant as an alternative to the murder charge? Should we jurors put this possibility of alternative charge into consideration when we consider our verdict on the murder charge?”

Question 2

“ Dr Au Yeung of Queen Elizabeth Hospital suspected the defendant might have psychosis. Should we jurors consider that psychosis might be induced by the consumed alcohol and that he was suffering a disease of the mind other than AII?”

21. Having consulted counsel, and with their agreement,[24] the judge gave the jury the following directions in response to the questions.  As to Question 1, he said:[25]

“ And the answer is this. The issue of manslaughter does not arise as a matter of law in the circumstances of this particular case, which is why neither counsel nor I have addressed it for you. If you find intention proved, your verdict will be one of guilty. If you find intention has not been proved, your verdict will be one of not guilty. I remind you that I am the judge of the law, and you are to follow my direction in this regard.” [Italics added.]

As to Question 2, he said:

“ And the answer is no, you should not consider the issue of alcohol-induced psychosis. If such a condition even exists, there has been no suggestion of it during the trial from any of the witnesses. You are to ignore it. To do otherwise would be to speculate. I remind you that you are to consider only the evidence you heard in this trial.”

22. Having retired to consider their verdict, the jury returned their verdict of guilty to murder a majority of 6:1 a little more than two hours later.

The summing up

23. At the outset of his summing up, the Judge identified the key issues arising for the consideration of the jury:[26]

“ It is sufficient for the moment for me to say that you might be satisfied from the evidence that the accused was drunk in the latter part of that evening. You may conclude that it was the accused who carried out the acts which led to the death of the deceased. That is an issue which you will need to decide, and if you do arrive at that conclusion, that leaves you with the key question which you will have to address, which is what was the accused’s intention at the time of the commission of the offence. [Italics added.]

24. Later, the judge gave the jury the standard direction in respect of murder.[27]  That direction included the following:[28]

“ So before you may convict the accused of the murder of Chan Ping-kwong, you have to be sure of each of the following matters:

(1) that the accused committed an act or acts which caused the deceased’s death;

(2) that the killing was unlawful; and

(3) that at the time of the act or acts which caused Chan Ping-kwong’s death, the accused intended either to kill him or to cause him grievous bodily harm; in other words, really serious bodily harm.”  [Italics added.]

25. Of the ingredient of intention, the judge went on to direct the jury:[29]

“ You will then see that you must be sure that the actual acts which brought about death were intentional; that is, deliberate. If you think that the act may have been unintentional, you must acquit the accused of the offence of murder. If you find the act which brought about the deceased’s death was or may have been unintentional or accidental, then the accused is guilty of no offence at all. You must not convict unless you are sure that the accused, when he did the act, intended to kill Chan Ping Kwong or to cause him really serious bodily harm.”

26. Of the relevance of drunkenness, the judge directed the jury:[30]

“ In deciding whether he intended to kill Chan Ping-kwong or to cause him really serious bodily harm, you must take into account the evidence that the accused was drunk. You will need to decide whether you accept that the accused was or may have been sufficiently drunk to be unaware later of what he had done, and with what intent. If you accept that the accused was or may have been drunk, you need to know to what extent that may be relevant to the issues you have to decide.

………

If you conclude so that you are sure that the accused became violent in drink and, while drunk, formed an intention to cause really serious bodily harm, then the requisite intent is proved. You must judge whether the accused had that intention at the time when he attacked the deceased. The fact that he may not have formed that intention if he had been sober does not provide him with a defence. The fact that when he sobered up, the accused could not recall what he had done or with what intent does not assist him. What is more, it is not a defence for an accused to say that he would not have behaved in this way if he had not been drunk.

 The accused’s state of drunkenness at the time of the violence is just one of the factors which we must consider.  Consider all of the circumstances, including the fact that the accused was drunk when judging whether the accused intended to cause really serious harm.  If you are sure that he did, then he is guilty of the offence and you will return a verdict of guilty.  If you are not sure that he acted with that intent, then you will return a verdict of not guilty.”  [Italics added.]

27. Finally, having referred to the evidence of Mr Tao in respect of the applicant’s state of drunkenness over the evening, which he suggested was consistent with the toxicological evidence of Dr Tse and was apparent from the CCTV, the judge said:[31]

“ It is likely, in these circumstances, that you will accept the accused was heavily intoxicated. That is a matter which you should take into account when considering whether he formed the requisite intention to kill or cause really serious bodily harm to the deceased.”

The defence case

28. The judge reminded the jury of the two issues described in the evidence of Dr John Wong and advanced on behalf of the applicant, namely that the applicant was too drunk to have committed the killing or, if the jury found that he had done so, that he was suffering from automatism induced as a result of alcohol idiosyncrasy intoxication.  Having described Dr John Wong’s evidence in some detail [32], the judge provided the jury with a summary:[33]

“ First, given the accused’s blood alcohol concentration at the time of the offence, the accused may have suffered from alcohol intoxication, and insofar as it is of any relevance, also from alcohol induced amnesia. But the extent of the blood alcohol concentration meant that the accused may not have been capable of committing the act which led to the death of the deceased.

I remind you, members of the jury, that it is your function, not his, to determine who performed that act. You may also think his opinion to be contrary to the evidence of Dr Tse, who you will recall told you that alcohol induced aggression is a well established and recognised condition.

Second, Dr Wong says that if you were satisfied that it were the accused who committed the acts that led to the death of the deceased, it was possible that the accused suffered from AII, a diagnosis which he recognises has a lack of validity and is controversial in nature, and which has been dropped from the standard reference work.

He did, however, say that although he agreed with the decision to drop it, he does not necessarily accept that the condition does not exist.

Third, if you were satisfied, he says, that it was the accused who committed the act that led to the death of the deceased, then it is possible that he committed the act in a state of automatism induced by AII, although this was not his preferred diagnosis.

Now, of course, I do not know what you will make of the evidence of this witness. If you were to conclude that it was the accused who performed the act that killed the deceased and you were to conclude that he did or may have done so whilst acting in a state of automatism induced by AII, you need to know the approach you are to adopt.

 It is this.  If, because of alcoholic idiosyncratic intoxication, the accused’s state of mind was such that at the time of the killing, his ability to exercise voluntary control was totally - not partially or substantially, but totally - destroyed, he is not guilty of the offence, and you will acquit him.  The defence has raised this issue for you to consider, but it is not for the accused to prove that was his condition.  It is for the prosecution to make you sure that he did not act in a state of automatism.”

The Law

29. There is no dispute that a judge is under a duty to leave to a jury all possible verdicts open to them on which a reasonable jury might return a verdict.  The judge is required to do so, even if the defence eschew the alternative verdict.  Clearly, that is what counsel for the applicant did in face of the question of the issue of manslaughter having been raised by the jury in its question.  The threshold requirement is “low”.  Nevertheless, it must be a verdict upon which a jury could reasonably reach such a conclusion.

30. In his judgment in the Court of Final Appeal in Ho Hoi Shing v HKSAR,[34] with which the other judges agreed, Chan PJ said of the ‘threshold’ requirement:

“ Not every possible alternative, however inconsistent with or unsupported by the evidence, has to be placed before the jury. An alternative is to be left to the jury only if there is evidence upon which a reasonable jury might return a verdict on that alternative. (See Lord Rodger of Earlsferry in Coutts, at p. 2187, para. 81.) If it were otherwise, the jury may be confused or unnecessarily burdened with additional issues which do not stand the slightest chance of succeeding. This will not do justice to either the prosecution or the accused. The threshold requirement was succinctly formulated by Lord Clyde in Von Starck at p. 1275 E as follows:

“If the evidence is wholly incredible, or so tenuous or uncertain that no reasonable jury could reasonably accept it, then of course the judge is entitled to put it aside.  The threshold of credibility in this context is, as was recognized in Xavier v The State (unreported), 17 December 1998, Appeal No. 59 of 1997 a low one, and, as was also recognized in that case, it would only cause unnecessary confusion to leave to the jury a possibility which can be seen beyond reasonable doubt to be without substance.  But if there is evidence on which a jury could reasonably come to a particular conclusion then there can be few circumstances, if any, in which the judge has no duty to put the possibility before the jury.” 

That is to say, the evidence which may be relied on to support an alternative verdict must not be so incredible or tenuous or uncertain that no reasonable jury could have accepted it; in other words, an alternative verdict should not be put to the jury if there is no evidential basis upon which a reasonable jury could have come to that alternative verdict. That the threshold is, as Lord Clyde put it, a low one is consistent with the fundamental principle that it is for the prosecution to prove guilt beyond reasonable doubt. ”

An alternative verdict of manslaughter

31. There is no dispute that murder is a crime of specific intent, in which proof is required of an intention to kill or to do grievous bodily harm.[35]  In the speech of Lord Birkenhead LC in The Director of Public Prosecutions v Beard, with whom the other judges agreed, the relevance of drunkenness to a consideration of specific intent was addressed:

“ …where a specific intent is an essential element in the offence, evidence of a state of drunkenness rendering the accused incapable of forming such an intent should be taken into consideration in order to determine whether he had in fact formed the intent necessary to constitute the particular crime.”

32. Clearly, the judge’s direction in respect of drunkenness and its relevance to intention in respect of the specific intent required in the offence of murder was correct.

33. By contrast, manslaughter is a crime of ‘basic intent’ only.  In the same passage quoted earlier in Beard, Lord Birkenhead LC went on to say:

“ In a charge of murder based upon intention to kill or to do grievous bodily harm, if the jury are satisfied that the accused was, by reason of his drunken condition, incapable of forming the intent to kill or to do grievous bodily harm, unlawful homicide with malice aforethought is not established and he cannot be convicted of murder. But nevertheless unlawful homicide has been committed by the accused, and consequently he is guilty of unlawful homicide without malice aforethought, and that is manslaughter.”

34. In his speech in Bratty v the Attorney General for Northern Ireland, Lord Denning cited those observations of Lord Birkenhead LC with approval:[36]

“ Another thing to be observed is that it is not every involuntary act which leads to a complete acquittal. Take first an involuntary act which proceeds from a state of drunkenness. If the drunken man is so drunk that he does not know what he is doing, he has a defence to any charge, such as murder or wounding with intent, in which a specific intent is essential, but he is still liable to be convicted of manslaughter or unlawful wounding for which no specific intent is necessary, see Beard’s case.”

35. In his speech in the Attorney General for Northern Ireland v Gallagher [37], Lord Denning reiterated that determination and provided examples of the extent of drunkenness required to avail a defendant of the defence:

“  If a man is charged with an offence in which a specific intention is essential (as in murder, though not in manslaughter) then evidence of drunkenness, which renders him incapable of forming that intention is an answer, see Beard’s case.  This degree of drunkenness is reached when a man is rendered so stupid by drink he does not know what he is doing (see Reg v Moore), as where, at a christening, a drunken nurse put the baby behind a large fire, taking it for a log of wood (Gentleman’s Magazine, 1748, p. 570); and where a drunken man thought his friend (lying in his bed) was a theatrical dummy placed there and stabbed him to death (“The Times”, January 13, 1951).  In each of those cases it would not be murder.  But it would be manslaughter.”

The evidential foundation

36. Clearly, there was a strong evidential foundation for the jury to consider the relevance of drunkenness of the applicant to a consideration of his ability to form the requisite intention for murder.  Of course, as the jury was directed, regard was to be had to that issue in the context of all the evidence.  That included the evidence of the nature of the attack on the deceased in the context of the applicant’s good character and his relationship with the deceased.  Also, the applicant’s conduct before, at and after the killing was relevant to a consideration of his intention at the time of the killing.  The description of counsel for the applicant in his closing speech of the attack as being “frenzied” [38] and “feverish” [39] resonated with reality.  The deceased was battered and bludgeoned to death by a sustained barrage of blows delivered with significant force, many of which were delivered to his head.  Yet, if he was the assailant, the applicant was found by his mother lying blood stained on his bed in his nearby bedroom, in a condition in which she was unable to communicate with him, within about half an hour of the killing.

37. It is perplexing that, in the discussions between the Bar and the Bench prior to closing speeches, that there was no discussion at all of the issue of the jury being directed that, if they were not sure that the applicant formed the requisite intent for murder, they were to consider the alternative verdict of manslaughter without intention by an unlawful and dangerous act.  It is all the more surprising that, when the matter was raised clearly by the question of the jury in respect of an alternative verdict of manslaughter, the matter was dealt with in such a peremptory fashion, without even a mention in discussions of an alternative verdict of manslaughter without intention by an unlawful and dangerous act.

38. We are satisfied that the issue of an alternative verdict of manslaughter without intention by an unlawful and dangerous act was clearly raised on the evidence and that the judge had a duty to leave it to the jury as an alternative verdict.

39. It is no answer to the judge’s failure to leave that alternative verdict to the jury that counsel for the applicant, Mr Cahill, lent his support and approval to the judge directing the jury that the issue of a verdict of manslaughter did not arise.  As Chan PJ said, of the duty of a judge to leave all possible alternatives to the jury which are open to them on the evidence, in his judgment in Ho Hoi Shing: [40]

“ He is not absolved from this duty even if a particular alternative is not raised by the parties or is inconsistent with the defence run by counsel for the accused.”

40. Chan PJ went on to cite with approval the statement of Lord Clyde in the opinion of the Privy Council in Alexander Von Stark v The Queen [41] of the duty of a judge, namely:[42]

“ It is his responsibility not only to see that the trial is conducted with all due regard to the principles of fairness but to place before the jury all the possible conclusions which may be open to them on the evidence which has been presented in the trial whether or not they have all been canvassed by either of the parties in their submissions.”

41. Similarly, it is no answer to the failure of the judge to leave to the jury that alternative verdict of manslaughter, to point to the fact that in returning a verdict of ‘Guilty’ of murder the jury is to be taken to have been satisfied that the applicant possessed the specific intent required for murder at the time of the killing.  In his judgment in Ho Hoi Shing [43], Chan PJ cited with approval the observation of Callinan J in his judgment in the High Court of Australia in Gilbert v R in stating:

“ 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) 2001 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 choices offered.”

42. Earlier, Chan PJ had cited with approval an observation to similar effect made in the opinion of the Privy Council delivered by Lord Tucker in Bullard v R: [44]

“ Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given. To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what the verdict the jury would have reached.”

The admissibility of the applicant’s out-of-court statements/responses

43. At the hearing, Mr Philip Wong declined to advance any oral arguments in support of his grounds of appeal and submissions in respect of the admissibility of the applicant’s out-of-court statements/responses.  He was well advised to do so.  They were bereft of any merit.  Given the view that we have taken in respect of the primary ground of appeal, we do not deal with those submissions, other than to state that we are satisfied that the judge was fully justified in ruling the material admissible having conducted a voir dire and that he provided adequate reasons for so ruling.

Conclusion

44. We are satisfied that the judge’s direction to the jury that the alternative verdict of manslaughter did not arise was a material misdirection and his failure to leave a verdict of manslaughter without intention by an unlawful and dangerous act to the jury was a material non-direction.

Proviso

45. In those circumstances, notwithstanding the respondent’s submissions to the contrary, there is no question of the application of the proviso.

Retrial

46. In his supplementary submission, counsel for the applicant did not oppose or even address the invitation made in the respondent’s written submissions that, in the event that the application was successful a retrial ought to be ordered and the applicant remanded in custody pending retrial.  In those circumstances, the court invited those representing the applicant, if they so wished, to make written submissions in respect of the appropriate orders of the court consequential upon the appeal being allowed. In a written submission dated 4 July 2014, counsel for the applicant stated that no objection was taken to an order of retrial or that the applicant be remanded in custody pending retrial.  An application was made that the Court order that the applicant have the costs of his appeal.  Finally, although no supporting reasons were advanced, the Court was asked to order that the retrial be conducted in Chinese.

47. In written submissions filed with the court on 18 July 2014, inter-alia, counsel for the respondent addressed the application made on behalf of the applicant for an order for the cost of the appeal, if the appeal proved to be successful. Counsel pointed out that in the absence of the judgment of the Court, the respondent was in a position to take only a preliminary position.

48. In the result, we allow the application for leave to appeal against conviction and, treating the hearing of the application as the hearing of the appeal, allow the appeal and quash the applicant’s conviction for murder.  We order a re-trial on a fresh indictment and order that the applicant be remanded in custody pending retrial.  We decline to order that the retrial be conducted in Chinese. Furthermore, we make an order nisi that the applicant is to have the costs of the appeal, to be taxed if not agreed.  The respondent is to make such further written submissions it may wish to make as to costs within 14 days. The applicant is to make any written reply it wishes to make within 14 days thereafter.