HKSAR v. Yeung Hung

CACC000378/1997

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL

1997, No. 378
(Criminal)

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Coram: Mortimer, V.-P., Rogers and Stuart-Moore, JJ.A.

Date of Judgment: 8 October 1998

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J U D G M E N T

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Mortimer, V.-P. (giving the judgment of the Court) :

1. The applicant was convicted of murder on 25 June 1997 before Wong J and a jury. His application for leave to appeal against that conviction was dismissed by another division of this Court on 11 September 1998. The facts of the case appeared in the judgment and we do not propose to repeat them now.

2. He applies through his counsel, Mr Peter Callaghan, for an order certifying that a point of law of great and general importance is involved in the decision under s.32(2) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484). He raises on this application two points for our consideration.

3. The first point is this:

Whether a trial judge should sum up the principle features of the defence case in addition to summarising the defendant's evidence where those features have emerged during the prosecution case, for example, from exhibits and/or cross-examination of prosecution witnesses?

Mr Callaghan submits that that is a point of great and general importance involved in this decision. His submissions are that at trial it was demonstrated that the three main prosecution witnesses - described at trial as Boss Yim and the two Chans - gave evidence involving a large number of discrepancies and further there were in front of the jury certain exhibits - photographs, a plan and the newspaper picture of the victim - and the judge did not specifically sum up this evidence to the jury relied upon by the defence.

4. In dealing with the failure of the judge to point out the discrepancies in detail to the jury and his failure to sum up the evidence concerning the physical exhibits, this Court said:

"The judge's task was to concentrate on the central issues in order to assist the jury with their task."

As was pointed out in the judgment, counsel for the applicant dealt with these matters in considerable detail in his final speech, so the matters were well in the jury's mind.

5. Mr Callaghan asks the question: What should the judge do when defence counsel does not do his task so well? That very question demonstrates his real difficulty. It is trite law that a trial judge must sum up the case for the defence adequately in the circumstances. See Lord Hailsham LC in R v Lawrence [1982] AC 510 at 519. A trial judge's duty in summing-up is to

"... include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts."

Further, in R v Cheng Pak-chang [1977-1979] HKC 132 at 142 Roberts CJ said:

"We do not think that more can be required of judge, in the course of his summing-up, than that he should remind the jury of the principal issues faced by them in reaching their verdict and draw their attention in a fairly balanced manner to the main features of the defendant's cases. It must not be assumed that a jury is composed of idiots. They have heard the evidence, and have been told that they are the judges of fact. If they have been correctly directed as to the law, the judge is not obliged to remind them of every piece of evidence which is capable of an interpretation favourable to the defence. If such an obligation were conceded, judges would play safe by reading out large pieces of the evidence and leave the weighing of it to the jury, virtually unaided."

The question for this Court is whether the point relied upon by Mr Callaghan is one of great and general importance and not one specifically related to the facts of the case. As can be easily seen, the general propositions of law are not under attack. The only question was whether the trial judge in this case had summed up these matters adequately. The decision of this Court was that he had done so. So far as the first matter raised, we are of the view that there is no point of great and general importance involved in the decision.

6. We turn to the second matter. This did not arise at the hearing of the appeal. As submitted by Mr Callaghan there was some doubt whether the judge ought to have left provocation to the jury at all. What he did not do was leave to the jury the question of manslaughter on the basis of lack of specific intent. So Mr Callaghan raises this second question for certification:

Where the trial judge gives a direction on provocation in the circumstances set out, should he give a separate direction on the manslaughter alternative, that is lack of specific intent?

He points out that on the evidence such a verdict was open. The jury in these circumstances were given no 'soft' option. It was either murder or nothing and the jury might have found it difficult to acquit entirely. He submits that the judge had overlooked the real defence which was manslaughter by an unlawful act.

7. We take issue with that last submission. The real defence here was self-defence. But we turn to the question whether the point is one of great and general importance. This Court in dealing with lack of intent said this:

"However, arising from grounds 4 and 8, we did consider whether the judge should have given a direction to the jury that they could convict of manslaughter, by reason of lack of intent, in the event that they found murder had not been proved but that the Applicant had unlawfully caused the death of the victim. It goes almost without saying that such a direction would not have assisted the Applicant because the jury were satisfied that murder had been proved. However, on the facts in this case, bearing in mind the hideous injuries inflicted upon the victim, such a direction would not in our judgment have been appropriate in any event."

8. As Mr Saw points out, it is usually incumbent upon the judge to leave manslaughter to the jury on the basis of lack of intent if there is evidence warranting that. But the decision of this Court was that it was not warranted in this case. But even if it had been, the question is - where does it lead the applicant? If the jury have been properly directed on murder and in particular on the necessary intent - as was the position in this case - then the jury have to consider murder and if not satisfied about murder, must acquit.

9. The second question also arises out of the facts of this case. It is not one, in our view, of great and general importance.

10. In those circumstances, we decline to certify any question. The application is dismissed.

Representation:

Mr Peter Callaghan (DLA) for Applicant

Mr D.G. Saw SC and Mr Simon Kwan GC (DPP) for Respondent