Mohamad Murad Bin Muhamad Yusuf v. The Queen

CACC000300/1977

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Coram: Huggins, J.A., Leonard and Trainor, JJ.

Date of Judgment: 11th July 1977.

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JUDGMENT

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Huggins, J.A.:

1. This is an application for leave to appeal against a conviction for murder. The Appellant was convicted after a trial taking four days. There was only one issue before the jury of any substance, that was whether the proper verdict was one of Guilty of murder or one of Not guilty of murder but guilty of manslaughter: the killing was admitted.

2. The relationship between the Deceased and the Appellant was that the Appellant worked as a cook in a hotel and the Deceased was his superior. The Deceased was a Chinese who had been in Malaya. The Appellant was one of a number of Malays who had come to Hong Kong to work in this hotel. There had been a series of disputes between the Deceased and his Malay associates. Two of them had in fact been dismissed from their employment as a result of his representations. There had shortly before the present incident been a further dispute with another of the Malays, and the evidence was that the Deceased had what I might call "racial tendencies" and had treated his Malay associates badly - or so they thought. On the night in question the Appellant came home from work and, having lost his key, was admitted to his flat, which he shared (amongst others) with the Deceased, by the caretaker. He then went out and came back shortly after one o'clock in the morning. On this occasion he said he was unable to obtain entry: the caretaker was not there to lend him a key and he could not make anybody hear. However, he expected the night-shift workers to return at 1.30 a.m. so he sat on the stairs and waited for them. In the mean time the Deceased returned. The Appellant's story was that he decided there and then to have it out with the Deceased. He called to him and they had a discussion which ended in a quarrel, and, according to the Appellant, the Deceased then pushed him in the chest. He at that time, having grabbed the Deceased by the hand, was holding on to him so that he could not go away and stop the discussion. In those circumstances the push made the Appellant lose his balance, he fell down the stairs and pulled the Deceased with him. The two of them rolled to the bottom of the stairs, the Appellant landing on top. He says that the Deceased started to shout and that he himself panicked because he does not speak Chinese and he was afraid that somebody might come along and be given a false story by the Deceased: so he tried to stop the noise. He seized the Deceased across the mouth and by the neck and subsequently, seeing a piece of string on the stairs, tied it round his neck and killed him.

3. The issue, as I say, was one as to the proper verdict, and that turned upon the question of intent. The learned judge in a short summing-up repeated at least four times what was the issue which the jury had to decide and made it abundantly clear that the test was a subjective test and not an objective test. The jury having retired were out for four hours. One does not know what they were talking about during that period, but they then came back with some questions for the learned judge. It often happens that at this stage in the trial a judge is caught unawares: it is very difficult sometimes to know what is in the minds of a jury when they ask questions and in this case it was particularly difficult to know what they had in mind. They asked four questions. The first one was for a definition of intention. The second and third (perhaps not such remarkable questions) related to the definitions of murder and manslaughter, and the last was in these terms:

"Does the action of placing the string against the victim's throat and holding it there at a force of 40 lbs. for between 2 minutes and 8 minutes constitute an intention to kill?"

The force of 40 lbs. and the time of 2 minutes to 8 minutes came from the evidence of the forensic pathologist. Any one studying that last question will immediately appreciate that it makes nonsense: nobody could possibly say that those actions "constituted" an intention to kill. Neither the judge nor counsel at the time fully appreciated the force of that particular word. We are told that the learned judge consulted counsel and indicated that all he intended to do was to say that this was a matter of fact for the jury, and counsel agreed with him. Therefore, it is even less than usual a matter for criticism of the learned judge that he said what he did. Nevertheless, in our view it was not sufficient. Those actions could not "constitute" an intention to kill. Was there some misuse of language by the jury? Did they mean "indicate" an intention to kill? We do not think it is appropriate to start speculating as to what the jury meant, but even if they did mean "indicate" then still their question showed a complete failure to understand the issue which they had to try, because they would then have been asking whether those facts alone indicated an intention to kill, whereas those facts had to be considered in the light of all the surrounding circumstances in order to decide whether there was an intention to kill. What was required, in our view, at that point in the trial was unhappily a new and full summing-up on the law of murder and manslaughter and on the intent involved. Without it, in our view, it is quite impossible to say with any degree of certainty - particularly in view of the first question which had been asked, "What is the definition of intention?" - that the jury did correctly appreciate what they had to decide.

4. The verdict which they returned was in our view unsafe and unsatisfactory. This is especially so in view of the nature of the evidence which was given. The Appellant had told a story which raised a very sharp issue. It was not an inherently improbable story and it was one which the jury might possibly have believed. It may be that they rejected it, but in all the circumstances we cannot say that we are satisfied that this case received the attention of the jury which it deserved and which was absolutely necessary. Accordingly the appeal must be allowed. We shall substitute a verdict of Not guilty of murder but guilty of manslaughter.

11th July 1977.

Representation: