HKSAR v. Lui Tsi Fai

CACC 340/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 340 OF 2001

(ON APPEAL FROM HCCC 196 OF 2000)

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Coram: Hon Stuart-Moore VP, Stock JA and Lugar-Mawson J

Dates of Hearing: 23 July 2002 and 6 March 2003

Date of Judgment: 1 April 2003

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1.This is an appeal against conviction where the only ground of any substance involves a point of law alone.

2.On 24 August 2001, the Appellant, aged 32, was convicted of murder following a trial before Suffiad J and a jury.

3.The facts were straightforward. The deceased was a drug trafficker who, on 11 March 2000, at her place of residence in Tsuen Wan, received multiple injuries to her head, neck and other parts of the body. Death resulted from the chop wounds to the neck which completely severed the windpipe, the oesophagus, the jugular vein and the carotid artery.

4.Five days later, on 16 March 2000, the Appellant was arrested. Initially, he denied being the culprit, admitting only that he had visited the deceased's flat late on 10 March 2000 and again in the early hours of 11 March 2000. However, he later admitted responsibility for the killing, saying that he had been in an argument with the deceased during which he had lost his temper and stabbed her with a can opener. He said that he then used a chopper to inflict further wounds on the deceased. After that, he stole her money and her store of drugs. His full confession was covered by four video-recorded interviews.

5.The motive put forward by the prosecution for the killing was that the deceased had been telling others, including her boss, 'Kam Mo', for whom she was selling drugs, that the Appellant owed her money for heroin which she had supplied to him.

The principal issues

6.In a summing up which expressed the issues clearly, the judge helpfully summarised the prosecution's case at the outset, dealing with the general nature of their allegation before saying:

"So the prosecution says this is a clear case of murder. The defendant had attacked the deceased in anger, first with the can opener, and later, in order to silence her from screaming and yelling, by chopping her with a chopper and in so doing he could only have intended to at the very least cause her serious bodily harm." (Appeal bundle p. 3)

7.The judge then summarized the case for the defence. The Appellant had given evidence and had been represented by highly experienced and able counsel who did not demur at the way it was expressed by the judge, which was in these terms:

"On the other hand, the defendant has admitted to you when he was in the witness box that he did inflict the fatal chop wounds on the neck of the deceased in the early hours of 11 March 2000, but in his own defence he says two things. First, that he did not intend to kill the deceased or to cause her serious bodily harm. Secondly, he says that in any event, he was provoked by the deceased into doing as he did as she had accused him of owing her a debt and stealing drugs from her; scolded and insulted him and his family, saying that he deserved to have his wife seduce other men; as well as threatened to tell Kam Mo of the defendant owing her money for drugs and stealing drugs from her.

He says he then picked up an object to strike her with it, and it was only after he had struck her that he realized it was a tin can opener when he saw that she was bleeding. Following that, a struggle then ensued between them and the deceased got hold of a chopper to attack him with it. He managed to wrest that chopper from the deceased, and because he was so overcome with rage, he used the chopper to chop the deceased, inflicting the fatal wounds to her. In short, the defendant says that because he was so provoked by the deceased's words and conduct he lost his self-control and struck her. Accordingly, he says he is guilty only of manslaughter and not of murder." (Appeal bundle pp. 3-4)

8.The principal issues to be decided by the jury were, as the judge had very properly indicated, whether the evidence had established murder or, alternatively, manslaughter either by reason of provocation or because of lack of intent.

Directions in law

9.The judge went on to deal with the law relating to murder, pointing out that there had been no dispute that the Appellant had delivered the fatal blows. As to the element of unlawfulness, the judge directed the jury that:

"As for the second ingredient, a killing is unlawful if it is done without legal justification. Legal justification for a killing will, for example, be when it is done in self defence. There is no question but that the killing of (the deceased) here in this case is unlawful and you should therefore not be unduly troubled by the second ingredient." (Appeal bundle p. 10)

10.Later on, the judge outlined in detail the Appellant's evidence to the jury. His own account provided the clearest indication, falling short of a formal admission, that he had no legal justification for inflicting the hideous injuries suffered by the deceased.

11.Near the end of the summing up, the judge summarised the defence case on provocation and lack of intent, having earlier dealt with these issues in meticulous detail, by saying:

"At the time, he was blinded with anger, then he became stunned and confused. ... He did not intend to kill Mo Por when he attacked her and he was so angry at the time, he did not think about causing her serious bodily harm." (Appeal bundle p. 41)

12.It is right to add that there were significant inconsistencies between the account given by the Appellant to the police in his video-recorded interviews and the version he gave to the jury. These were important as his account to the police appeared to amount to a confession to murder as opposed to his defence in court which limited his responsibility to manslaughter. These inconsistencies were fully and fairly covered in the judge's summing up. At no stage did the Appellant or his counsel suggest that there should be a complete acquittal.

The application

13.Against this background, Mr Michael Poll, on the Appellant's behalf, submitted that the jury's verdict was unsafe and unsatisfactory on two grounds.

(1) Should a jury be given an option to acquit when there is no dispute on the evidence that a defendant is at least guilty of unlawful killing?

14.Firstly, Mr Poll contended that the judge had erred in directing the jury that it was only open to them to convict of murder or of manslaughter. He submitted that as the Appellant had entered a plea of 'Not Guilty', a third option should have been left open to the jury, entitling them to acquit altogether.

15.The passage about which complaint is specifically made occurred at the end of the summing up where the judge said:

"Before I finish, let me tell you something about the verdict. This case is unlike the ordinary case because of the course that it has taken. The only possible verdicts that you can return in this case is either a verdict of guilty of murder or a verdict of guilty of manslaughter. There is no other verdict that you can return in this case." (Appeal bundle p. 46)

16.Mr Poll described this as amounting to a direction to convict, albeit the jury were left to decide between murder and the less serious alternative of manslaughter.

17.Mr Darryl Saw, SC, on the Respondent's behalf, accepted that the jury were not given an option to acquit the Appellant altogether. He submitted that on the facts of this case, where no issue had ever arisen that the Appellant was guilty of manslaughter at least, the directions given by the judge were entirely appropriate.

18.In submitting that the judge had made an error by taking this course, Mr Poll began by directing our attention to a passage in Archbold [2003] para 4-411 at page 485 which reads:

"L. DIRECTION TO CONVICT

It has been held, in a number of cases, that there may be circumstances in which a judge can properly direct a jury that on the evidence before them an issue must be decided in a way adverse to the accused: see R v Comerford and Healey, 49 Cr App R 77,CCA; R v Ferguson, 54 Cr App R 410, CA; R v Martin, 57 Cr App R 279, CA.

It has always been said that such circumstances would be rare. The mood has gradually changed, however, to the extent that the Court of Appeal has effectively arrived at the view that such a direction should never be given. The culmination of this movement is R v Gent, 89 Cr App R 247 (post). Important cases on the way were DPP v Stonehouse [1978] AC 55, HL; R v Thompson (Michael), 79 Cr App R 191, CA; R v Challinor, 80 Cr App R 253, CA; and R v Gordon (N.E.), 92 Cr App R 50, CA."

19.In the present case, there was no evidence to suggest that the Appellant, when he killed the deceased, had done so other than unlawfully. The only real questions to be determined by the jury, as the judge had carefully directed them, were confined to the Appellant's intention at the time of the killing and as to whether the Appellant, assuming the intention required to prove murder had been proved, had acted under provocation. The question we have had to ask, therefore, is whether the jury, in the light of modern authority, should have been given an option to acquit the Appellant entirely, although his own case seemingly excluded such a possibility.

20.Mr Poll placed considerable reliance on the principle which emerged as the result of the majority decision in the House of Lords in DPP v Stonehouse [1978] AC 55 at 80, namely, as Lord Edmund-Davies expressed it, that:

"If the judge is satisfied that, on the evidence, the jury would not be justified in acquitting the accused and indeed that it would be perverse of them to do so, he has no power to pre-empt the jury's verdict by directing them to convict. The jury alone have the right to decide that the accused is guilty. In an appropriate case (and this was certainly such a case) the judge may sum up in such a way as to make it plain that he considers that the accused is guilty and should be convicted. I doubt however whether the most effective way of doing so would be for the judge to tell the jury that it would be perverse for them to acquit. Such a course might well be counter-productive."

21.Lord Keith, continuing this theme, at page 94, said:

"It is the function of the presiding judge at a trial to direct the jury upon the relevant rules of law. This includes the duty, if the judge takes the view that the evidence led, if accepted, cannot in law amount to proof of the crime charged, of directing the jury that they must acquit. It is the function of the jury, on the other hand, not only to find the facts and to draw inferences from the facts, but in modern practice also to apply the law, as they are directed upon it, to the facts as they find them to be. I regard this division of function as being of fundamental importance, and I should regret very much any tendency on the part of presiding judges to direct juries that, if they find certain facts to have been established, they must necessarily convict. A lawyer may think that the result of applying the law correctly to a certain factual situation is perfectly clear, but nevertheless the evidence may give rise to nuances which he has not observed, but which are apparent to the collective mind of a lay jury. It may be suggested that a direction to convict would only be given in exceptional circumstances, but that involves the existence of a discretion to decide whether such circumstances exist, and with it the possibility that the discretion may be wrongly exercised. Thus the field for appeals against conviction would be widened. The wiser and sounder course, in my opinion, is to adhere to the principle that, in every case where a jury may be entitled to convict, the application of the law to the facts is a matter for the jury and not for the judge. I see no reason to doubt that the good sense and responsible outlook of juries will enable them to perform this task successfully."

22.It was pointed out by Mr Saw that the argument in DPP v Stonehouse was not concerned with a question about which of two alternative offences the jury should convict upon. However, with respect, this misses the point. The key issue addressed in DPP v Stonehouse was whether it was correct for the judge to withdraw from the jury their right to decide whether the evidence established the offences. The same issue arises in this appeal, namely, whether the judge was entitled to withdraw from the jury decisions as to whether the evidence established beyond reasonable doubt that the Appellant had killed the deceased and that in doing so he had acted unlawfully. In DPP v Stonehouse, it was said by Lord Salmon (at page 79) that:

"However obvious it may be that [the facts proved amounted to the attempt charged] and that the accused was guilty, technically, the judge should still have left to the jury to decide whether or not the evidence established the attempt charged and to have found him guilty or not guilty accordingly."

23.In the result, the House of Lords applied the proviso to section 2 of the Criminal Appeal Act 1968, being satisfied that no miscarriage of justice had occurred.

24.In the present proceedings, it seems to us, however obvious it was from a combination of the Appellant's admissions to the police and his testimony at trial, together with the absence of evidence sufficient to raise a case of self defence, that he was guilty at least of manslaughter, technically the judge should have left the jury to decide whether or not the evidence established that the Appellant had killed the deceased and that the killing was unlawful. However, if further support was needed for his argument, Mr Poll also relied on passages taken from R v Gent [1989] 89 Cr App R 247 where the principle in DPP v Stonehouse was confirmed.

25.In R v Gent, the trial judge had summed up to the jury with a direction to convict based upon the appellant's evidence which was said by the judge to have amounted to an admission that he had agreed with a co-conspirator to supply amphetamines to another. The English Court of Appeal held, at p. 250:

"Whether or not there is still a category of rare cases where the judge is justified in directing a conviction, it is perhaps unnecessary to decide. There is no reference to any such category in the speeches of the majority in Director of Public Prosecutions v Stonehouse (1977) 65 Cr App R 192, [1978] AC 55; and the existence of such a category is inconsistent with the thrust of Lord Keith's speech at p. 232 and p. 94 respectively.

Our own view would be that, if such a category exists at all, it must be confined to wholly exceptional cases where, for example, there has been something in the nature of a formal admission of guilt. The fact that on the evidence, including the evidence of the defendant himself, only one verdict is possible, does not justify the judge in directing the jury to convict. If the judge takes the view that the defendant has, in the course of his evidence, admitted his guilt, then it is always open to him to give the defendant an opportunity, in the absence of the jury, to change his plea. But if he maintains his plea, the defendant is entitled to the verdict of a jury, even though in the view of the judge, an acquittal would be perverse.

Thus it is the function of the jury to assess the evidence and from that evidence to determine the facts. If the evidence is overwhelmingly one way, then their task will be easy, but it remains their task. The confusion seems to arise from equating overwhelming evidence with the existence of the facts necessary to found a conviction; but the two are not the same. Overwhelming evidence is likely in the nature of things to lead to the jury determining that the necessary facts for a conviction exist, but that determination is a matter for them, not the judge.

Of course the judge may make his view clear. He may use the sort of language that was suggested by Lord Salmon in Director of Public Prosecutions v Stonehouse at p. 219 and p. 80. But his language, however strong, must fall short of a direction to convict. He must, in the words of Lord Edmund-Davies at p. 226 and p. 88, 'trust the jury to play their constitutional part in the criminal process.' "

26.The judgment in R v Gent makes it plain that in such a case as the present one, where there was nothing "in the nature of a formal admission of guilt", a direction to convict should not be given, whatever the strength of the evidence against the defendant. The court expressed the strength of this sentiment (at page 251) in the following way:

"One would have thought that Director of Public Prosecutions v Stonehouse (supra) was clear enough. But the message has not yet got home. Cases continue to arise where judges are directing juries to convict. Challinor (1985) 80 Cr. App. R. 253 was such a case. Thompson (1984) 79 Cr. App. R. 191, [1984] 1 W. L. R. 962 was another. Gordon, The Times, May 11, 1987, was a third. In all these cases it was held that the direction to convict was a material irregularity. The present is another case in the same series.

The appellant's evidence in the witness box may have been the strongest possible evidence on which the jury could find that he was a party to the conspiracies with which he was charged. But it was still only evidence of guilt. The appellant was entitled to have the verdict of the jury on the evidence, not the view of the judge. Accordingly there was a material irregularity in respect of all three counts."

27.The position in England is mirrored in Australia. In Jackson v R [1976] 134 CLR 42, the trial had concluded with the judge deciding to put special questions to the jury. When all of them had been answered in the affirmative, the judge directed the jury:

"... the effect in law of your answers is that all the elements of the charge which have to be proved have been proved. I will now ask you how do you find George Norman Jackson on the first count?"

28.The court held that the course adopted by the judge was a correct one. In the course of his judgment, Murphy J, having expressed the view that the judge had not directed the jury to return a verdict of guilty, said (at page 55):

"A judge is never entitled to direct a jury to return a verdict of guilty. This is so, whether or not facts have been found specially. If the judge does so direct, the jury are entitled to refuse to follow his direction. The jury system is the means by which the people participate in the administration of justice. Its history shows that the task of a jury is not a mechanical one of fitting the law (as the judge states it) to the facts (as the jury find them). Here and in England, juries have often refused to convict where there was oppression in the law or its administration, despite overwhelming evidence of guilt. A famous example is the consistent refusal of juries over many years to convict of treason, whatever the evidence, when the penalty was hanging, drawing and quartering. When the law was altered to reduce the barbarities, juries began to convict again ..."

A little later (at page 56), Murphy J went on to say:

"Anyone acquainted with the modern operation of the system of criminal justice will be aware that juries do invoke their traditional power to acquit for reasons which are extraneous to the strict legal issues, for example, where the charge is trivial or stale or there has been serious misconduct by the prosecution. The independence of juries must not be eroded by judges directing them to convict."

29.Although the examples provided by Murphy J were far removed from the facts and circumstances of the present case, in our opinion the principle remains that juries should not be directed to convict in the absence of a formal admission of guilt.

30.An example where formal admissions to this effect were made is to be found in Yager v R [1976-1977] 139 CLR 28. In that case, it is to be noted, the High Court of Australia again included Murphy J, but on this occasion he gave a dissenting judgment stating that even in such circumstances "a judge may never direct a jury to convict." Some of the formal admissions which had been made by defence counsel with the defendant's authority are set out in the judgment of Mason J (as he then was) before he went on to say (at page 46):

"The conclusion that there was no issue of fact to go to the jury is reinforced by the circumstance that after the trial judge ruled on the question of law, counsel for the applicant did not address the jury, stating that there was nothing that he could say which would not involve canvassing the correctness of the ruling on the question of law. Counsel perceived, and in my opinion correctly perceived, that once the question of law was answered adversely to the applicant, that was the end of the case. The formal admissions were designed to throw up for determination the question of construction of the statute. But as the question of construction was correctly resolved against the applicant, nothing remained.

Subject to one qualification to which I shall refer later, even without the evidence of the expert witnesses called by the Crown, the uncontradicted formal admission involving as it did the acknowledgment that the material in question was of the genus cannabis, established all the elements in the two charges. The submission that the jury should not have been directed to return a verdict of guilty hangs entirely on the suggestion that the jury were not bound to accept or act upon the applicant's admission. In the circumstances of this case, when attention is given to the formal character of the admission, the situation in which it came to be made, the purpose for which it was made, the fact that no endeavour was made to withdraw it and the nature of the defence case, it is an exercise in fantasy to suggest the jury might not have acted on the admission. A rejection of the admission by the jury would have resulted in a perverse verdict. The learned judge was therefore in my opinion entitled to direct the jury to return a verdict of guilty; it would not have been proper for him to invite the jury to consider whether they should accept or reject the formal admission; to do so would have been to invite them to deal with a matter which was not an issue at the trial." (Emphasis added)

31.In the course of our review of the authorities to which we were referred, and others which repeat the same principle, we found only one other case in which there was a direction to convict related to similar circumstances to the present.

32.In R v Larkin [1942] 29 Cr App R 18 at 24, the judge had directed the jury that a verdict of acquittal did not arise on the evidence and that they should convict of either murder or manslaughter. The court held that:

"Where facts are proved and accepted, then whether those facts amount to a crime or not must be a question of law, not of fact. Where the facts are in dispute, it is always for the jury to determine what are the true facts. They must have a direction on what their verdict must be if they accept one view of the facts, and what it must be if they accept the other view. But where the facts are proved in such a way that there can be no question about them, then it is perfectly right for the learned Judge to tell the jury: Those facts amount to a lawful or an unlawful act. In this case, in our opinion, it was perfectly right for the learned Judge not to leave to the jury any question of acquittal, but to tell the jury, as he did, on the facts of the case, that, accepting the evidence of the accused person to the full, it was not open to them to return a verdict of Not Guilty."

33.The facts which had been "proved and accepted" were not 'admitted facts' in the sense that they are understood nowadays. In Hong Kong, formal admissions can now be made under the provisions of section 65C of the Criminal Procedure Ordinance, Cap. 221. Such an admission will then, by reason of the very words of that section, amount to "conclusive evidence in those proceedings of the fact admitted." The decision in R v Larkin pre-dated an equivalent provision in England and in this sense it cannot be said to carry the Respondent's position any further forward.

34.More particularly, in the light of what has been said in the more recent cases on this topic to which we have already referred, and others which have been brought to our notice by both counsel who have appeared before us, to whom we are grateful for their extensive researches, we think that R v Larkin is no longer of any value. Indeed, it is not without interest that well over a decade before the decision in DPP v Stonehouse, in a 'Note on R v Larkin', to be found in the Hamlyn Lectures Eighth Series [1965], Trial by Jury, Appendix II at page 186, which Mr Saw put before us, Lord Devlin was critical of the decision in that case. The note (at page 195) reads:

"The formula employed in R v Larkin derives an appearance of legitimacy from the ambiguity in the word can be used to mean either guidance or 'direct'. It commandthings. When a judge 'directs' the jury ; and they are two quite different on the lawinforming them about the law and this is what it , he is instructing or is his business to dothe judge directs the jury to return a certain . But if verdictthem what the law is, he is instructing or , he is not simply telling ordering them how they are to apply it. There are some cases in which a judge has power to give a direction in the sense of a command. A judge can direct or order a jury to return a verdict of not guilty because the judges have been given in this respect by statute supremacy over the jury; they can set aside a verdict of guiltyof words which implies that the law would set . But if a judge uses a form aside a verdict of not guiltyis telling the jury what is false and is , he deceiving them about their constitutional position.

Of course, when a judge 'directs' a jury in the sense of telling them what the law is, he is not obliged to state only general propositions of law without relating them to the facts of the case. He is entitled to say to the jury: 'If you find such and such facts, and it appears to me that they are the only facts that you can find on the evidence, I direct you as a matter of law that you should find the prisoner guilty.' If notwithstanding such a direction a jury returns a verdict of not guilty, a judge may be allowed to suppose that the verdict is due to misunderstanding rather than to a refusal to apply the law. It should then, it seems to me, be permissible for a judge to ask the jury to reconsider their verdict and to tell them, if he thinks fit, of their constitutional position in the terms laid down by Lord Mansfield. This seems to me to be preferable to his giving the jury a direction in the sense of command which he has no power to enforce and which may depend for its acceptance on the jury's ignorance of their constitutional rights."

35.The admissions in the case with which we are presently concerned were no more formal than they had been in R v Larkin. There had not been a plea of guilty to manslaughter and no formal admissions of relevance to this issue had been made under section 65C of the Criminal Procedure Ordinance. The nearest that anything came to amounting to an admission is to be found in defence counsel's closing speech to the jury when he said:

"Our case is that the prosecution must -- on the admission of my client, he says he killed this lady. Our defence is that the prosecution must prove the intent, first of all, and secondly, of course, must ... disprove the fact that my client was provoked." (Appeal bundle p. 384)

A little later, counsel went on to say:

"One doesn't know how many wounds he inflicted on this poor woman. Do you not think, members of the jury, that is indicative, a very strong indication that he had indeed lost self-control on that occasion? Lost it to such an extent that, as he describes himself, 'I had a blind eye.'" (Appeal bundle p. 388)

Again, counsel continued:

"He's done a terrible deed, he knows he's killed somebody, whether it be murder or manslaughter ..." (Appeal bundle p. 390)

Shortly after this, counsel said:

"The prosecution also put to you that, well, he was living rough, hiding away, that somehow this is an element of guilt of murder. Again, this is totally wrong. He could have hidden out, hidden away if he killed a person, whether it be manslaughter or murder. It's still a serious enough offence, manslaughter. Don't be under the impression that manslaughter is not a serious offence. It's a most serious offence. It's killing another human being.

So the fact that he was living rough is not really going to assist you at all to decide whether or not he is guilty of murder, because he's admitting, basically, he's guilty of manslaughter, killing a person." (Appeal bundle p. 391)

36.Throughout his speech, counsel had addressed the jury on the only evidential basis open to him, namely that the issue calling for the jury's decision lay between murder and manslaughter. Summarising his position at the end of his speech, he put the matter very simply, reinforcing what he had said earlier in his address, when he stated:

"We say, at the end of the day, that whatever way you look at it, that the prosecution have failed to, first of all, prove the necessary intent, but even if you are satisfied beyond a reasonable doubt, that my client did have the intent to kill or cause really serious bodily harm, the prosecution failed to disprove the fact that he was provoked to commit those acts." (Appeal bundle p. 401)

37.Mr Saw submitted that in the particular circumstances of this case for a direction to be given which left open the possibility of an acquittal, not only for murder but also for manslaughter, when it had never been disputed that the Appellant was at least guilty of manslaughter, would have been confusing and misleading bearing in mind the jury's duty to return a true verdict according to the evidence.

38.In support of this argument, Mr Saw pointed to what was said in R v Maxwell [1989] 88 Cr App R 173 at 178 where, in an appeal against conviction for robbery, the issue was whether the trial judge should have withheld from the jury the option to convict the defendant on a less serious offence. It was argued that this course of action might have left the jury with what may have seemed the unpalatable option of having to acquit altogether if they did not convict of robbery. Addressing this issue, Mustill LJ said:

"But in other cases there will be a viable alternative to a conviction on the major offence as charged, and no conviction at all, and if so the judge should leave the jury with the full range of choice. In still other cases, there will be no real place for an acquittal: for instance, where a person accused of murder admits an unlawful killing, but maintains that in the circumstances it amounted to no more than manslaughter, in which event the jury should be left only with a choice between verdicts for the greater and the lesser offence. The right course will vary from one case to another, but the judge should always use his powers to ensure, so far as practicable that the issues left to the jury fairly reflect the issues which arise on the evidence." (Emphasis added)

39.It is apparent that the example taken by Mustill LJ was merely designed to illustrate the point being made that there will be cases where an acquittal does not realistically arise and where an alternative offence should be left to the jury. In this sense, the reference by Mustill LJ to leaving the jury with only the choice between manslaughter and murder does not represent the ratio of the case. In any event, Mr Saw's contention that R v Maxwell provides support for what occurred at the trial of the Appellant is advanced on the basis of "a person accused of murder (who) admits an unlawful killing ..." We do not consider that Mustill LJ could have had in mind evidence the effect of which the judge perceived to have amounted to an admission that the defendant had killed and that in doing so he had acted unlawfully. In such a situation, no doubt, a suitably worded direction can be given pointing out that although the jury may have little difficulty in deciding these issues, nevertheless it will be for them to decide. We shall return to this aspect later. Clearly, also, R v Maxwell does not reflect the situation which arose in the present case where the judge withdrew an acquittal as a possible choice of verdict.

40.We have concluded, therefore that the passage in R v Maxwell to which we have referred, on which Mr Saw so heavily relied, should not be read as relaxing the approach in R v Gent (above) that if there is a category of case in which the judge is entitled to direct a jury to convict "it must be confined to wholly exceptional cases where, for example, there has been something in the nature of a formal admission of guilt". What might satisfactorily constitute a formal admission, apart from a plea of guilty, is not explained in R v Gent, although the highly unusual situation in Yager v R (above) will doubtless provide a good example. Moreover, there are sometimes cases where the jury is made aware of a plea of guilty to an alternative offence which the prosecution have declined to accept. In murder trials, it is not unusual for a defendant who has pleaded guilty to manslaughter on his arraignment for murder to make the fact that he has formally accepted his guilt to manslaughter known to the jury. Provided nothing is said during the trial which suggests that the plea may have been equivocal, it is our view that the judge would in such circumstances be entitled to leave to the jury with the simple choice of convicting the defendant of either murder or manslaughter. The same, of course, would equally apply in other cases involving an alternative plea being entered to the main allegation on the indictment, for example, where the jury is informed that a defendant has pleaded guilty to handling in the alternative to theft, or theft in the alternative to robbery or burglary, or indecent assault in the alternative to rape.

41.Bearing in mind the principles which have emerged from the cases we have referred to, it is apparent that anything short of a plea of guilty to a less serious alternative offence which the prosecution has not accepted or a formal admission under section 65C of the Criminal Procedure Ordinance which removes any vestige of a defence, will invariably mean that issues of fact, however clear-cut they may seem to be, must be left to the jury to decide. Even where the evidence has been all one way, it nevertheless remains the task of the jury to decide whether the prosecution have proved the facts which must be established before they can convict. The function of the judge, by contrast, is to direct the jury on the law, including the ingredients which constitute the offences set out on the indictment, and as to the facts which must be proved to establish them.

42.It is in this context, however, open to a judge in appropriate circumstances to instruct a jury that a defence which has been advanced is not a defence in law, or to suggest to a jury that there is no dispute as to an element of an offence. What a judge must not do is to make a deduction from the evidence that a defendant is in effect admitting guilt and, on that basis, direct a jury to convict. Conclusions arrived at from the evidence, no matter how strong that evidence may have been, are matters for the jury to decide. In this sense, it is vital that evidence which might well be described as 'all one way' should not be confused with a formal admission of guilt.

43.Taking the facts of the present case, there had been no formal admission of guilt. There was an evidential admission in which the Appellant had made no pretence that he bore responsibility for the killing and the manner in which it was carried out. There was no express admission that the killing was 'unlawful'.

44.In the light of all we have said, we consider that whether or not the facts which the Appellant recounted to the jury amounted to an unlawful killing was for the jury and not the judge to decide. In our opinion, it is no answer to this important point of principle, as Mr Saw contended, that common sense dictated that no other verdict, in the terms which the judge directed, would have made any sense. A similar situation to that which we have looked at in these proceedings not infrequently arises in cases where a defendant decides not to give any evidence at his trial and opts simply to put the prosecution to proof of its case. In such an example, assuming the prosecution have produced sufficient evidence to make a case against the defendant, there will be no evidence to contradict the allegation. Nevertheless, whatever the strength of the prosecution's evidence, the defendant in such a situation would be entitled to the jury's verdict. It would not be open to the judge to direct a conviction whether or not the indictment included alternative counts for the jury's consideration. Similarly, although a defendant gives evidence which is inculpatory, it remains for the jury to determine whether his non-formal admissions are true.

45.We also disagree with Mr Saw's suggestion that the jury may have been confused by a direction which left open the possibility of a complete acquittal. Judges regularly tell juries what the real issues in the case have been and indicate to them which of the matters they are called upon to decide are likely to cause them little difficulty.

46.It would have been a perfectly permissible steer in the right direction in the present case for the judge to have said to the jury something along these lines: 'It is not suggested by the defendant or by his counsel that there was any justification for this killing, such as self defence. It follows that whilst this decision is, as with all others in this case, a matter for you, you will probably have no difficulty at all in deciding that the killing was unlawful. You may think, therefore, that the only issue which in reality you have to determine is whether the defendant is guilty of murder or of manslaughter.' As it is, the judge, with respect, went too far by directing the jury to convict in a case where the very rare circumstances which might have justified such a direction had not arisen.

47.Accordingly, we consider that well-intentioned though the judge's directions no doubt were in limiting the issue to be decided by the jury to a choice of murder or manslaughter, he was not entitled to direct them in terms which did not leave open the possibility, however theoretical that may have been, of acquitting the Appellant altogether. As such, this was a material misdirection.

Proviso

48.In the light of our decision on the first ground of appeal, we have had to consider whether this is a case in which it is appropriate to apply the proviso to section 83(1) of the Criminal Procedure Ordinance. Despite Mr Poll's valiant efforts to persuade us otherwise, we have no doubt that it is. There was no prospect whatever of an acquittal, at the very least, for the offence of manslaughter. However, this misdirection could not, in any event, conceivably have had any impact on the jury's findings because, leaving aside the inevitability of at least a conviction for manslaughter, the jury's verdict of guilty on the count of murder meant that a full acquittal could never have been an option even if they had been properly directed. In all the circumstances, we are satisfied that no miscarriage of justice has actually occurred and that it would be appropriate to apply the proviso.

(2) Direction given on admitted facts

49.In his second ground, Mr Poll argued that the judge had erred in directing the jury in the following manner:

"Always bear in mind that when you draw an inference of guilt or an inference adverse to the defendant, you must be satisfied that, firstly, the facts from which the inference is drawn have either been admitted by the defendant, or been proved to your satisfaction beyond reasonable doubt by the prosecution. Secondly, that the inference must be a compelling one and the only one that no reasonable man could fail to draw from the direct facts proved or admitted." (Emphasis added) (Appeal bundle p. 8)

50.Mr Poll, in advancing this ground, was apparently under the impression that the judge was referring to admissions made by the Appellant to the police, or in his evidence to the jury, in which case the judge should, he argued, have added that the jury would have to be satisfied that the admissions were true. However, this is another example in this court of a small part of a summing up being placed under a spotlight and scrutinised out of context. It is plain to us that the judge was here referring to the 'admitted facts' which he had dealt with not long beforehand when he directed the jury that they should treat them "as though their contents are proved conclusively without any of the witnesses being called to give evidence of the matters stated in them".

51.However, lest it should be thought that Mr Poll's misapprehension might have been shared by the jury, the judge went on to direct the jury about the approach they should adopt to the Appellant's alleged admissions (or confessions) to the police when saying:

"In deciding whether you can safely rely upon these admissions and confession(s), you must decide two issues. Firstly, did the defendant in fact make the admissions? If you are not sure that he did, you should ignore them. If, however, you are sure that he did, and you have seen the video-recording yourselves and you have heard and seen what the defendant said during the interview, then, secondly, are you sure that the admissions are true? When deciding this, you should have regard to all the circumstances in which you find the admissions were or may have been made, and consider whether there were or may have been any circumstances which might cast doubt upon the reliability of those admissions." (Emphasis added) (Appeal bundle p. 16)

A little later, the judge directed the jury in these terms:

"It is for you to assess what weight should be given to the admissions and the confessions. If, for whatever reason you are not sure that the admissions and the confessions are true, then you must disregard them. Only if you are sure that the admissions and the confessions are true, that you may rely on them." (Emphasis added) (Appeal bundle p. 21)

52.It seems to us that in those passages which we have italicised to give them emphasis, the judge was explaining to the jury how an admission (or confession) to police should be approached. This was in precisely the way Mr Poll has submitted should have been done. We do not, however, share his reservation that the jury might have been misled by the earlier direction in relation to their approach to the drawing of inferences from facts admitted by the Appellant.

53.This ground is without substance.

Conclusion

54.For the reasons we have set out, and applying the proviso to section 83(1) of the Criminal Procedure Ordinance, this appeal is dismissed.

Representation:

Mr D.G. Saw, SC, DDPP and Mr Jonathan Man Tak-ho, SGC, of the Department of Justice, for the Respondent.

Mr Michael Poll, instructed by Director of Legal Aid, for the Appellant.

Remarks:
Appeal by Appellant to Court of Final Appeal. Leave to appeal refused. Please refer to the appeal judgment of FAMC000053/2003.