HKSAR v. Limbu Machindra

CACC 183/2020

[2022] HKCA 1189

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 183 OF 2020

(ON APPEAL FROM HCCC NO 167 OF 2019)

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BETWEEN

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Before:  Hon Macrae VP, Zervos JA and A Pang JA in Court

Date of Hearing:  20 July 2022

Date of Judgment:  12 August 2022

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.The applicant was charged with the murder of his father, Limbu Prem Raj (“the deceased”), on 8 April 2018 in Hong Kong, contrary to Common Law and punishable under section 2 of the Offences Against the Person Ordinance, Cap 212.

2.On 15 September 2020, the applicant pleaded not guilty to murder but guilty to manslaughter upon his formal arraignment; however, his plea was not accepted by the prosecution. Accordingly, he stood trial for murder before Campbell-Moffat J (“the judge”) and a jury. On 29 September 2020, the applicant was found guilty of murder and sentenced to life imprisonment.

3.He subsequently appealed against both his conviction and sentence, notwithstanding that section 83G of the Criminal Procedure Ordinance, Cap 221 precludes an appeal against sentence where, as with life imprisonment for murder, the sentence is fixed by law. On 20 July 2022, having heard argument from the parties on conviction, and from the applicant in person on sentence, we reserved our decision. This is our judgment.

Background and undisputed facts

4.The deceased lived alone in a flat in Canton Road, Mong Kok, Kowloon comprising a living room, bedroom, kitchen and bathroom. He had leased the premises in 2015.

5.At 1:08 am on 9 April 2018, at Kwong Wah Hospital, the deceased was certified dead. An autopsy of the deceased was conducted by a pathologist, Dr Kwok Ka-ki (PW12) (“Dr Kwok”), on 11 April 2018. She found a number of injuries to the deceased, including two wounds, one large and one small, to his head, the larger of which pierced the deceased’s skull through to his brain; a deep cut to the deceased’s thigh; multiple bruises on his body and multiple lacerations to his hands[1]. Dr Kwok gave her opinion that the likely cause of death was a loss of blood caused by the wounds, which in turn lowered the deceased’s blood pressure[2]. Forensic examination of the deceased’s blood and urine samples revealed that the blood/alcohol level and the urine/alcohol level were both 160mg/100mL[3].

6.Fingerprint or palm print impressions of the deceased were found on a wall tile in the bedroom and an alarm clock in the living room; while a fingerprint or palm print of the applicant was found on the metal gate to the flat and a glass bottle on a shelf in the living room.

7.A DNA comparison conducted by Ms Wong Lai Man (PW10) (“Ms Wong”), a biochemist employed by the Forensic Division of the Government Laboratory, revealed that:

(a)  The DNA of the deceased and the applicant could not be excluded as sources of the DNA mixture found in the bloodstain on the handle of a chopper knife (Exhibit P22)[4].

(b)  There was a high degree of probability that the DNA on the following items came from the deceased:

(i)  A bloodstain on the front of the applicant’s T-shirt (Exhibit P27) seized from the applicant’s residence[5];

(ii)  Bloodstains on the bedsheet seized in the flat[6];

(iii)  Bloodstains collected from the wall opposite the kitchen sink, the plastic board on the right side of the sink, the tiled wall and the mattress inside the flat[7];

(iv)  A bloodstain found on the left shoe seized from the applicant’s residence[8].

(c)  There was a high degree of probability that the DNA on the following items came from the applicant:

(i)  A bloodstain on the back of the applicant’s T-shirt (Exhibit P27)[9];

(ii)  A bloodstain on a pair of jeans worn by the applicant upon his arrest (Exhibit P28)[10].

8.Subsequent to the arrest, the applicant gave four video recorded interviews under caution: (i) between 12:23 and 1:51 pm on 9 April 2018 (the “1^st VRI”); (ii) between 9:10 and 9:47 pm on 9 April 2018 (the “2^nd VRI”); (iii) between 10:12 pm on 9 April and 1:05 am on 10 April 2018 (the “3^rd VRI”); and (iv) between 3:31 and 5:08 pm on 10 April 2018 (the “4^th VRI”). The applicant did not challenge the voluntariness of any of his interviews.

The prosecution case

9.The prosecution called several witnesses, including a friend of the applicant (“PW1”), the applicant’s uncle (“PW2”) and the applicant’s aunt (“PW3”). These three witnesses had gone to the deceased’s flat on 8 April 2018 for a lunch gathering with the deceased and the applicant, at which the applicant had cooked a meal for them. They testified that the applicant and the deceased were drinking at the time[11]. PW2 and PW3 described how the applicant had asked the deceased for money over lunch, as a result of which the two had a dispute. When the applicant then tried to snatch the deceased’s gold necklace, a tussle ensued. PW2 and PW3 managed to intervene and remonstrate with the applicant but left shortly afterwards since they were uncomfortable with the situation[12]. Nevertheless, they were concerned enough to seek help from a nearby shop in order to call the police. They then saw the applicant running out from the building, a scene which had been captured by the CCTV of a nearby chemist shop[13].

10.According to the applicant’s landlady (PW9), the applicant returned to his residence at about 3 pm that afternoon and slept for seven hours before being woken up by a telephone call at about 10 pm[14].

11.The applicant’s two brothers (PW5 and PW6), testified that the relationship between the applicant and the deceased had been good[15]. Neither suggested that the deceased was of violent disposition[16].

12.Ms Wong, who conducted not only a DNA comparison on the bloodstains found in the deceased’s flat but also an examination of the blood spatter inside the premises, considered that the pattern of blood splatter revealed that the attack on the deceased was not a single blow in a static position. The applicant and the deceased appeared to have moved from the doorway to the premises into the kitchen area.

13.Dr Kwok described the slice-like lacerations to the deceased’s hands as defensive injuries[17], whilst the multiple bruises on his body were caused by blunt force trauma[18]. She said that the infliction of the large wound to the deceased’s head would have required “very great force”[19].

14.In his VRIs, the applicant said that he arrived at the flat at about 10:30 or 11 am on 8 April 2018 and began drinking with the deceased. He left the flat shortly after PW2 and PW3 had left. However, he had to return to the premises because he realised he had left his jacket behind containing his identity card. Since he did not have any keys, he knocked on the door and was confronted by the deceased with a chopper in his hand. The deceased grabbed the applicant’s wrist and pulled him, whereupon the deceased slipped on the floor and lost hold of the chopper. The applicant then picked up the chopper, intending to scare the deceased off. He hit him once or twice on the head lightly, dropped the chopper and left the flat. He then returned to his own residence.

15.The prosecution contended that, although the applicant had been drinking, he was not so drunk that he could not form the intention to kill the deceased or cause him really serious bodily harm with Exhibit P22. The applicant was not acting in self-defence.

The defence case

16.The applicant, who was of clear record, elected not to testify but called three defence witnesses. The defence case was that the applicant had been drinking with his friend (DW3) the night before the date of the offence. At the time of the offence, he was so drunk that he was not able to form the intent to kill or cause grievous bodily harm to the deceased.

The judge’s summing-up and the answer to the jury’s question

17.In her summing-up to the jury, the judge directed the jury in law in respect of the offence of murder and manslaughter by way of an unlawful and dangerous act, and on self-defence and self-induced intoxication. She supplemented her oral directions with several printed handouts of the directions on law in both English and Chinese and what were referred to as “roadmaps” to assist the jury’s consideration[20].

18.However, following their retirement, the jury posed three questions and sought further directions from the judge. The questions were these:

(a)  What is the legal definition of “intent”?

(b)  What is the difference between “intent” and “motive”?

(c)  Can you provide some examples?

19.Having received the questions, the judge prepared a printed document of her proposed answers[21] (“MFI-14”), comprising 10 paragraphs, for the purpose of discussion with counsel for the respective parties. It is perhaps relevant in understanding the argument now mounted if we set out the judge’s proposed answers in full (which we have numbered for ease of reference):

“1. There is a difference between intent and motive. Motive is similar to desire. A person may intend to achieve a certain result whilst not desiring it.

2. For example, a person may have accidentally walked into a public protest when going into the MTR. They want to get away from it quickly and the first train which arrives in Admiralty station is going to Chai Wan. They really want to go to Central but now want to get as far away from the protesters as possible and so they get onto the Chai Wan train. They intend to get onto the Chai Wan train but they do not desire to go to Chai Wan.

3. You must be sure that the defendant intended either to kill his father when he hit him with the chopper or that he intended to cause his father really serious bodily harm.

4. You decide intent by looking at what the defendant did and said and the effect of his actions. You should look at his actions before, during and after the alleged offence.

5. If you find the defendant’s act was a voluntary one, ask yourself

i) How probable was the consequence which resulted from that act?

ii) Did the defendant see that consequence?

6. If he did not appreciate that death or really serious bodily harm was likely to result from his act, he cannot have intended to bring it about.

7. If he did, but thought the risk to which he was exposing his father was only slight, then it may be less likely that he intended to bring it about.

8. If however you are satisfied that at the time he hit his father, the defendant recognised that death or serious harm would be virtually certain to result from his act of hitting his father with the chopper then that is a fact from which you may infer that he intended to kill or cause serious bodily harm, even though he may not have desired that result.

9. You are not entitled to infer the necessary intention unless you feel sure that death or serious bodily harm was a virtual certainty as a result of the defendant’s actions and that the defendant appreciated that such was the case.

10. Where a man realises that it is for all practical purposes inevitable that his action will result in death or serious bodily harm the inference may be irresistible that he intended that result, however little he desired or wished it to happen.”

20.During the discussion that followed in court, defence counsel agreed with the proposed directions in MFI-14 up to and including paragraph 4, but considered the rest of the proposed directions to be “outside (the) parameters of what the jury question is concerned with”[22]. When the judge then said that having heard counsel, she was proposing to leave the remainder of what she had written out of her directions to the jury, prosecuting counsel agreed with that course, without demur from defence counsel[23]. It is thus clear that what she was intending to omit, namely paragraphs 5-10 of her proposed answers, corresponded with what has come to be known as the “Nedrick direction”[24], which Mr Ramanathan SC, on behalf of the applicant at this appeal, says she should have given.

21.Ultimately, the judge provided the following direction to the jury in response to their questions (“the impugned direction”)[25]:

“COURT:	I’m ever so sorry, ladies and gentlemen. You were brought down a bit earlier than I wanted you to be brought down and I did need to speak to defence counsel and prosecution counsel before I could speak to you.
	So you have asked, ‘What is the legal definition of intent and what is the difference between intent and motive. And can you provide some examples.’
	There is a difference between intent and motive. Motive is similar to a desire to do something. A desire to achieve something. A person may intend to achieve a certain result whilst not desiring that result. And I am going to give you an example.
	For example - and I’ve made it local - for example, you might accidentally walk into a public protest in an MTR station in Admiralty and you want to get away from it very quickly, and the first train on your level that you’ve come down into and suddenly found people is going to Chai Wan, but in fact you actually want to go in the opposite direction, you want to go to the other side and go to Central. But nevertheless, because of the protesters, you get onto the train to Chai Wan. Now, you obviously intend to get onto the train to Chai Wan because you’ve made that decision. But you don’t desire to go to Chai Wan, you want to go to Central. But you made a decision and therefore you intend to get on the train, all right. There is a difference.
	What you have to do in this case, remembering your flow diagram, right, you have to ask yourself, ‘Am I sure that the defendant intended to kill his father?’ Alternatively, ‘if I don’t think that, I’m not sure, am I sure that he intended to cause him some really serious bodily harm when he hit him with that chopper?’ And both of these, because it’s what’s in somebody’s head, you’re being asked to infer, aren’t you, from the facts because you don’t know what’s in somebody’s head. And therefore you have to do that from everything else you know. All of the evidence of the actions and the relationship, what the defendant did before, what he did at the time as best you can work out, what he did afterwards. Yes?
	But you have to take into account fairly squarely that at a moment in time he is holding that weapon and it is for you to therefore decide when he uses it, at the moment he uses it, that’s the time when you need these two things in his mind. At the time you act, what is your intent, yes? It’s not before or after. And it can be an intent that matters -- that passes in seconds. It doesn’t have to be a long-held intent, it doesn’t have to be something that’s been thought through at all. It’s just at the moment of the action what was his intent, yes?
	And knowing -- and therefore, perhaps in this case you then have to overlay that with your finding of how drunk he was perhaps, yes, in this case. Where do I think the range of his ability to make a decision at -- is and in that range, did he? Because as I said before a drunken intent is still an intent. But you have to have an intent. Can’t be so drunk that you can’t even form that intent. But at the point that you are hitting, what did he intend?
	Does that help? Yes. I can go further, but I don’t want to - I don’t want to go beyond what you’ve asked me to do at this stage. All right. I’m sorry, you were sitting around for a while. We won’t do that again, next time if you have another question. I’ll let you go.”

Grounds of appeal

22.Mr Ramanathan, who did not appear at trial, has advanced two substantive grounds of appeal (Grounds 1 and 2) and one general ground that the conviction was unsafe and unsatisfactory (Ground 3). Ground 1 avers that the impugned direction failed to assist the jury to clearly understand the intent necessary for the murder charge. Ground 2 further alleges that the impugned direction was inadequate and incomplete, since the judge failed to deliver the remaining part of her proposed directions in MFI-14, namely paragraphs 5-10. The three grounds can be condensed into a single complaint, that the impugned direction failed adequately to address the jury’s questions, thereby rendering the conviction unsafe and unsatisfactory.

Applicant’s submission

23.It is said of the impugned direction that it was unhelpful and confusing to the jury. The references to “desire” and “achieving a certain result” would not have enabled the jury to distinguish between intention and motive It was argued that the judge should have articulated fully the directions espoused in R v Nedrick[26], as modified in R v Woollin[27], so as to give real, practical assistance to the jury. He relied in particular on the statement of Lord Steyn in Woollin that[28]:

“It may be appropriate to give a direction in accordance with Nedrick in any case in which the defendant may not have desired the result of his act.”

24.Accordingly, it is argued that the conviction is unsafe and unsatisfactory.

Respondent’s submission

25.Ms Chan, on behalf of the respondent, by reference to Lee Kwan Kong & Another v HKSAR[29], submitted that the modified Nedrick direction was not appropriate, since the present case was not one of the “rare cases”[30] that called for such an instruction to the jury. The impugned direction had been discussed with both counsel, and provided clear, proper and adequate assistance to the jury. The local example given in the direction of the person boarding a train at Admiralty station for Chai Wan when he really wanted to go to Central seems to have been appropriately tailored from the example given in Nedrick[31] of the man boarding an aeroplane at London Airport for Manchester. It was submitted that the directions were straightforward and easy to understand.

Discussion

26.Although we speak of the so-called Nedrick direction, it has in fact been modified by the House of Lords in Woollin. When, following the jury’s three questions, the judge decided not to give the second part of her proposed directions (namely, paragraphs 5 to 10 of MFI-14), she was in fact declining to give the Nedrick direction, whether modified or not. In view of the applicant’s argument, it is nevertheless worth setting out the entire passage in Lord Steyn’s judgment in order to understand the Woollin modification of the Nedrick direction, which modification Lord Hope specifically endorsed[32]. Lord Steyn held[33]:

“In my view Lord Lane CJ’s judgment in Nedrick provided valuable assistance to trial judges. The model direction is by now a tried-and-tested formula. Trial judges ought to continue to use it. On matters of detail I have three observations, which can best be understood if I set out again the relevant part of Lord Lane’s judgment. It was:

‘(A) When determining whether the defendant had the necessary intent, it may therefore be helpful for a jury to ask themselves two questions. (1) How probable was the consequence which resulted from the defendant’s voluntary act? (2) Did he foresee that consequence? If he did not appreciate that death or serious harm was likely to result from his act, he cannot have intended to bring it about. If he did, but thought that the risk to which he was exposing the person killed was only slight, then it may be easy for the jury to conclude that he did not intend to bring about that result. On the other hand, if the jury are satisfied that at the material time the defendant recognised that death or serious harm would be virtually certain (barring some unforeseen intervention) to result from his voluntary act, then that is a fact from which they may find it easy to infer that he intended to kill or do serious bodily harm, even though he may not have had any desire to achieve that result … (B) Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case. (C) Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen. The decision is one for the jury to be reached upon a consideration of all the evidence.’ (Lettering added)

First, I am persuaded by the speech of my noble and learned friend, Lord Hope of Craighead, that it is unlikely, if ever, to be helpful to direct the jury in terms of the two questions set out in (A). I agree that these questions may detract from the clarity of the critical direction in (B). Secondly, in their writings previously cited Glanville Williams, Professor Smith and Andrew Ashworth observed that the use of the words ‘to infer’ in (B) may detract from the clarity of the model direction. I agree. I would substitute the words ‘to find.’ Thirdly, the first sentence of (C) does not form part of the model direction. But it would always be right for the judge to say, as Lord Lane CJ put it, that the decision is for the jury upon a consideration of all the evidence in the case.”

27.Quite apart from the fact that it would seem from the judge’s discussions with counsel that neither was advocating giving the so-called Nedrick direction, we do not think this was a case which merited one. Accordingly, the judge was right ultimately not to give one. The applicant had used a chopper, not to “scare” the deceased and hit him “lightly” once or twice, as he had claimed[34], but to bring it down on the deceased’s head with such “very great force” that it cut through his skull into his brain. In addition, there was another chop wound to the deceased’s head, a deep cut to his thigh and multiple lacerations to his hands, consistent with defensive wounds. Moreover, judging from the position of the blood spatter, the deceased must have retreated from the front door to the kitchen as blows were continually being inflicted upon him. It could hardly be said in these circumstances that the applicant’s motive or desire in doing what he did and his intention might have been different. Anyone who inflicted these grievous wounds must at the very least have intended to inflict really serious bodily harm.

28.In that regard, the facts of the present case are to be contrasted with those in the four authorities cited by Mr Ramanathan in support of his argument. In R v Moloney[35], the appellant had killed his stepfather after a night drinking at home following a family party, when the stepfather had claimed he could outshoot, outload and outdraw the appellant, who was a serving soldier. The defence was that the two men were very close, that the appellant never intended to cause injury to anyone and that the incident “was just a lark”; with the appellant contending that he did not realise the gun was aimed at his stepfather. The issue, therefore, concerned the appellant’s foresight of the consequences of his actions.

29.In R v Hancock & Another[36], the two appellants, who were striking miners, had thrown or pushed two concrete objects from a bridge onto a three-lane carriageway, intending to block the road and prevent a convoy of rebellious, strike-breaking miners going to work. In the process, one of the concrete objects hit a taxi killing the driver. Since the defence was that it was not the appellants’ intention to kill or harm anyone, but to block the road or frighten those miners who had refused to join the strike, their motive, or what they desired to achieve, and their intention were arguably very different. Again, the issue concerned the foresight of the consequences of what they had done.

30.In Nedrick itself, the appellant had poured paraffin through the letterbox of a house and set it alight, causing the house to burn down and killing a child inside. The appellant told the police that he did not want anyone to die: he just wanted to frighten the occupant. The Court characterised the case as one in which “the defendant does an act which is manifestly dangerous and as a result someone dies. The primary desire or motive of the defendant may not have been to harm that person, or indeed anyone”[37]. The Court held[38]:

“Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer[39] the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case.”

31.Finally, in Woollin, the case which modified Nedrick, “the appellant lost his temper and threw his three-month-old son on to a hard surface”, yet the prosecution “did not contend that the appellant desired to kill his son or to cause him serious injury”[40]. Again, the appellant’s motive or desire and his intention may have been different, leading to the issue of his foresight of the consequences of his actions.

32.In all of these cases, the defendant/appellant’s motive or desire and his intent could be said to be different, and called for a careful direction along the lines of the modified Nedrick direction. Whilst Mr Ramanathan deftly tried to depict the circumstances of the present case as akin to those of the stepfather/stepson relationship in Moloney, with the ensuing need to give a modified Nedrick direction, the cases were quite different and distinguishable. The appellant before us had deliberately rained a number of sustained and serious blows with a lethal weapon on his defenceless father. Foresight of consequences did not enter into the equation, for such consequences would have been obvious even to someone who was drunk, although there was a question as to how drunk he may have been, to which issue we shall turn shortly. As Lord Bridge explained in Moloney[41]:

“The golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury’s good sense to decide whether the accused acted with the necessary intent, unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and argument, some further explanation or elaboration is strictly necessary to avoid misunderstanding. In trials for murder or wounding with intent, I find it very difficult to visualise a case where any such explanation or elaboration could be required, if the offence consisted of a direct attack on the victim with a weapon, except possibly the case where the accused shot at A and killed B, which any first year law student could explain to a jury in the simplest of terms. Even where the death results indirectly from the act of the accused, I believe the cases that will call for a direction by reference to foresight of consequences will be of extremely rare occurrence.” (Emphasis supplied)

33.The facts of these four cases relied upon by the applicant may be contrasted with those in HKSAR v Lee Kwan Kong & Ors[42]. There the deceased was subjected to a course of violence with the use of various objects by his three assailants, who were all some 20 years younger than himself, over a sustained period of time in two different places. The appeals of two of his assailants convicted of murder having been dismissed by the Court of Appeal, the applicants then sought leave to appeal to the Court of Final Appeal on the basis that a modified Nedrick direction “should be given in all murder cases where the defendant may not have desired the result of his acts and it is common ground that there was never any intent to kill”[43].

34.In refusing leave to appeal, the Appeal Committee of the Court of Final Appeal held:

“4.  R v Nedrick was a case where the defendant set fire to paraffin which he had poured through the letter box of a woman’s house, having earlier threatened to “burn her out”. A child in the house died in consequence. The English Court of Appeal recognised that in the great majority of cases, “particularly where the defendant’s actions amounted to a direct attack upon his victims”, the simple direction asking the jury to decide whether on the evidence the defendant intended to kill or do serious bodily harm is sufficient. However, the court acknowledged that in some cases (including Nedrick’s case) the facts may involve the defendant doing ‘an act which is manifestly dangerous’ which causes someone’s death but where ‘the primary desire or motive of the defendant may not have been to harm that person, or indeed anyone’ (at p 270). In such a case, it may be appropriate to direct the jury along lines aimed at ascertaining whether the defendant foresaw the consequences of his act as a virtual certainty, enabling the jury to infer the necessary intent on his part, even though he may not have desired to bring about those consequences. See also Lord Steyn in Woollin [1999] 1 AC 82 at 95.

5.  It was argued in the Court of Appeal that it was a misdirection not to give a Nedrick direction in the present case. Stuart-Moore VP, giving the judgment of the court, rejected that argument on grounds (set out in §§47 and 48 of the judgment) which we respectfully find wholly convincing. This is plainly not a case where any Nedrick direction was called for. Nor is this case like Woollin where the defendant acted in a momentary loss of temper. The present applicants clearly desired to cause injury to the deceased when they beat him up. The Judge ruled out an intention to kill. But the question very much for the jury was whether they intended to cause him really serious injury. That required the straightforward direction given by the Judge. Given the evidence of sustained, concerted and brutal attacks spanning many hours, with the applicants using not only their fists and feet but also an iron pipe and a broomstick or mop handle, resulting in extremely serious and ultimately fatal injuries to the deceased, it is not at all surprising that the jury returned their verdict of guilty. The question formulated does not arise for decision on the present facts. Nor is there any question of there being a substantial and great injustice involving a failure to give a direction similar to a Nedrick direction.”

35.We do not consider that the question of drunkenness impacts on the conviction in this case. The prosecution argued convincingly that although the applicant had been drinking, he was not so drunk that he could not form an intention to kill or cause really serious bodily harm to the deceased. He had, for example, collected PW1, PW2 and PW3 and brought them to his father’s flat, since they did not know the way; he himself cooked the lunch; when he realised that the deceased was drinking too much, he attempted to dilute his drinks with Coca Cola; he asked the deceased for money and responded to PW2’s remark that he should be ashamed of himself; and, on his own case as asserted in his VRIs, his mind was clear enough to realise that he had left his jacket and identity card in the deceased’s flat and to return there; and after the incident to run from the flat.

36.In any event, the issue of whether the applicant was able to form an intent to kill or cause really serious bodily harm was squarely before the jury: it was the defence that he was not able to form such an intent. The judge directed the jury in clear terms that if they found he did not have the intent to kill or cause the deceased really serious bodily harm, then they must acquit[44]:

“So I’m going to talk to you now about intoxication. You must not convict the defendant of murder unless you are sure that the defendant, when he did the act, hitting with the chopper, intended to kill his father or to cause him really serious bodily harm. In deciding whether he intended to kill or cause really serious bodily harm to his father, you have regard to all the evidence in this case, including the evidence that he had been drinking.

If you think that because he was so drunk he did not intend or may not have intended to kill his father or cause him really serious bodily harm then you must acquit him of murder. But if you are sure that despite his drunkenness, despite the amount you find he had to drink he intended to kill his father or intended to cause him really serious bodily harm, then this part of the case is proved against him. A drunken intent, either to kill or to cause really serious bodily harm, is still an intent.”

37.Later, the judge repeated[45]:

“There is no evidence of ill feeling or ill will between the defendant and his father. So the issue that you really have to decide is whether this incident occurred because the defendant was drunk, because that does not appear to be another reason. You may find another reason, but that does not appear at first glance to be another reason as to why this happened. You have to look at, if he was drunk, was he so drunk that he did not form the intention to kill, or he did not form the intention to cause really serious bodily harm. For in the defendant’s words in the video recorded interview, he intended to ‘scare’ his father or try to get his father to let him go. That is what his intent was. But there was an action that was carried out in order to achieve that end and the action was to hit with the chopper. So did he intend that? And did he intend, in hitting with the chopper, to kill or to cause really serious bodily harm, cut into? Because a cut is really serious bodily harm; any cut is really serious bodily harm.”

38.She then reminded the jury that it was the defence that[46]:

“…the defendant was not just drunk, but so drunk that he did not form the intent to kill or to cause really serious bodily harm when he used the chopper and hit out; at the same time as hitting, he did not intend that.”

39.In our judgment, the judge’s directions were correct. If the jury were satisfied that, despite the fact that the applicant had been drinking, he was still capable of forming an intent to kill or cause really serious bodily harm, they would have convicted him. Had the jury entertained any reservation that the applicant’s intent fell short of that required to cause really serious bodily harm because of the issue of drunkenness, they would have acquitted. We, therefore, reject Ground 1 of the appeal.

40.As we have seen, the judge, having initially decided to give a direction which conformed with Nedrick, albeit not with the modified direction in Woollin, resolved, following argument, not to give the latter part of her proposed directions from paragraphs 5-10 of MFI-14 after all. In doing so, she was, with respect, correct and confined her answer to the questions the jury had asked, without further confusing them in respect of foresight of consequences, which did not apply on the facts of this case. Moreover, it would seem that both prosecuting and defence counsel agreed with that course.

41.Finally, we do not agree with Mr Ramanathan’s residual argument that the judge’s remaining answer was confusing and unnecessary. It was clear and appropriate in the circumstances. Accordingly, we also reject Ground 2, with the result that the general complaint in Ground 3 falls away.

42.The application for leave to appeal against conviction is accordingly refused and the appeal dismissed.

Appeal against sentence

43.The applicant also wished to pursue an appeal in person against his sentence of life imprisonment. We informed him that this Court could not entertain an appeal against a mandatory sentence for murder, which is fixed by law: see HKSAR v Shengqi[47]. Nevertheless, he desired to say that the killing of his father would never have happened if he had not been drinking. We understand his position, and whilst there was no obvious premeditation on the evidence, the fact is that his father’s life was sadly, and needlessly, lost in circumstances which will no doubt plague him for the rest of his life.

44.The application for leave to appeal against sentence must be refused and the appeal also dismissed.

Ms Christal Chan ADPP, of the Department of Justice, for the Respondent

Mr Kumar Ramanathan SC, instructed by Jesse H Y Kwok & Co, assigned by the Director of Legal Aid, for the Applicant (re: Conviction)

The Applicant appeared in person (re: Sentence)