Lai for Pui v. The Queen

CACC000277/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 277 OF 1974

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Coram: Briggs, C.J., Huggins & McMullin, JJ.

Date of Judgment: 10th June 1974.

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JUDGMENT

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Briggs, C.J.

1. Mr. Bernacchi moves the Court on behalf of the Appellant for leave to appeal against his conviction for murder. The only ground of appeal of which notice has been given is to the effect that the Appellant was falsely accused and wrongly convicted. We refused a request for an adjournment to enable notice to be given of further grounds. We were informed of the further grounds it was desired to argue and all but one of these were, in our view, clearly unsustainable. That one ground was couched in these terms:

"The judge did not adequately explain the alternative verdict of manslaughter on the assumption that the Accused was at least one of the persons assaulting the deceased around the head. He confused the jury by saying several times that if they were not convinced that the Accused took part in the assault they might well feel there was insufficient common intention to make the Accused guilty of murder and therefore that he could be convicted of manslaughter".

We invited counsel to explain this to us at greater length and are now satisfied that there is no substance in the complaint.

2. The case for the Crown was that the Appellant and a number of other ...(illegible) entered a billiard saloon and there attacked the Deceased with billiard cues. Subsequently the Appellant picked up a short, blunt instrument and struck the Deceased with it on the head and neck. The Deceased died of subdural haemorrhage resulting from the head injuries. The Appellant's defence was an alibi.

3. The contention advanced before this Court is that the learned judge failed to make it clear to the jury that if the fatal blows were struck by the Appellant it was still open to them to find him not guilty of murder but guilty of manslaughter. On the evidence it is questionable whether it was open to the jury to return such a verdict, for it could only have been on the basis that when he struck the blows he intended to do something less than grievous bodily harm. Despite the argument of counsel that the medical evidence would have justified such a finding we have grave doubts whether it would. Nevertheless we are prepared for the purposes of this appeal to assume that a manslaughter verdict was open.

4. Having directed the jury as to malice aforethought the learned judge continued:

"Any unlawful killing is an offence - a criminal offence. Where it is coupled with the intention to which I have referred earlier, it is murder. Where it is not coupled with such an intention, then it is the offence of manslaughter. For example, if people engage in a fight and in the fight one of the persons is killed, that is manslaughter unless the person who killed had the intention which I mentioned, but in a normal fight where there is no intention to kill or to do really serious injury, the offence would be manslaughter. If persons decide to beat up another person without the intention to which I have referred, that, too, would be manslaughter."

It is not suggested that that was wrong or that it did not sufficiently explain the offence of manslaughter. What is said is that the jury might have been confused by later parts of the summing-up to such an extent that this direction was rendered nugatory, particularly as the judge did not expressly say that the Appellant might be guilty of no more than manslaughter even though he struck the fatal blows. Mr. Bernacchi submits that the general impression given by the summing-up was that if the jury were satisfied that the Appellant struck the fatal blows their verdict must be Guilty (of murder) and that if they were not so satisfied the proper verdict was Not guilty of murder but guilty of manslaughter. The passages alleged to have misled the jury related to the position if they were in doubt whether the Appellant struck the fatal blows but found that he had a common intent with whoever did strike those blows. For example, the judge said:

"But if a jury is left in this position that they do not know who struck the fatal blow and they were to feel that some had an intention only to inflict a not serious injury and others had the intention to inflict serious injury or to kill, then, not knowing who struck the blow, a jury could only arrive at a verdict of manslaughter".

It is said that in such circumstances those who had the lesser intent would not have been guilty either of murder or of manslaughter. We do not think it is necessary to consider that, because, even if the direction were wrong, it could not cause any misunderstanding of the liability of the Appellant if it was proved that he struck the fatal blows. The error could, moreover, only have been material if the jury had returned a verdict of Not guilty of murder but guilty of manslaughter.

5. The application is dismissed.

10th June 1974.

Representation:

Bernacchi M.C. & H.Y. Leung (T.M. Chow & Co.) for appellant.

Sharwood C.C., for Crown/Respondent.