The Queen v. Man Wai Keung

CACC000403A/1990

HEADNOTE

Murder in which self-defence, accident and diminished responsibility were issues. It is desirable when explaining grievous bodily harm to the jury to use the words "really serious bodily harm". Since the decision in Solomon Beckford v. The Queen [1988] AC 130, the proper test where the issues were: whether the defendant used reasonable force in defending himself, is to ask whether he used such force as was reasonable in the circumstances as he honestly believe them to be. Where the defendant suggested an accidental death in the course of self-defence, that issue must be left to the jury as one of death by accident.

---------------------------

Coram: Hon. Fuad, V.-P., Power & Nazareth, JJ.A.

Date of Hearing: 3 December 1991

Date of Judgment: 20 December 1991

-----------------

JUDGMENT

-----------------

Power, J.A.:

1. This is the judgment of the Court.

2. After trial before Kaplan, J. and a jury, the applicant was convicted of murder. The particulars of the offence alleged that he, on the 14th day of December 1988, on the second floor, 27, Staunton Street, Central, Hong Kong, murdered MAN Sai who was his father.

3. The victim and his wife lived together with their son, the accused, at 27 Staunton Street, second floor. The victim was a decoration contractor. The applicant operated a garment factory in China and travelled back and forth to China from time to time on business.

4. At about 6 p.m. on 14th December 1988, a neighbour saw the victim return to the building carrying food. Shortly thereafter, the victim's wife returned home and, having been alarmed because a light, which should have been on, was not burning and because the iron grille was opened, went downstairs and was, after some time, accompanied back upstairs by the aforesaid neighbour. The neighbour entered the flat and found the deceased lying on the floor surrounded by blood. At about 7 p.m. ambulance attendants arrived and found that the deceased was dead.

5. The Forensic Pathologist Dr. Yu Hon-wai, who arrived at about 9 p.m., found that rigor mortis was already beginning to set in and that there was a large quantity of blood splattered in the area of the body. Dr. Yu performed the post mortem, during which he found there was a stab wound on the lower right front of the neck about 3 cm long and 9 cm deep. He also found on the neck of the deceased a ligature mark which indicated that the deceased had been strangled by a rope or something resembling a rope. He was satisfied from this mark that considerable force had been used as the hyoid bone and the thyroid cartilage had both been fractured. He was, nonetheless, satisfied that the cause of death was not strangulation but was the stab wound. In his opinion it was likely that the deceased was unconscious at the time when he was stabbed. He formed this opinion largely because there were no defensive wounds and no splashing of blood such as he would have expected had the deceased been conscious.

6. The applicant was arrested on the following day, the 15th of December, at about 10.30 p.m. after he was found swimming in the water off Lau Fau Shan by a Marine Police launch. This launch picked him up and, when questioned, he was alleged to have said, "I have killed my father. I am now trying to escape to China". He was taken to the Yuen Long Police Station and was eventually handed over to the Regional Crime Unit No.2 of Hong Kong Island. Upon being questioned, he told police officers that on the day of the death of his father it had been his intention to go back to China. He said that he had selected some cloth in Shamshuipo to take with him but found that he did not have enough cash to pay for it. He said that he decided to go to his parents home, where he had been living, to see if he could find any money or jewellery or gold which would enable him to pay for the cloth. He said that he took some gold ornaments, put them into a bag and was about to leave the flat when his father returned and that, upon seeing that the flat had been ransacked, his father scolded him and "forked his neck", and that he then "forked" his father's neck. He said that they fell to the floor and that he found a leather belt on the floor which he picked up and tied around his father's neck. He said he tightened it harder and harder but that his father was eventually able to pull it off and that he then, on the spur of a moment, picked up a knife which happened to be to hand and stabbed his father in the throat once. He said that he became very frightened and remained in the flat until the return of his mother. He then detailed his actions until, more than 24 hours later, he was picked up by the police launch.

7. The applicant challenged the admissibility of the statement alleging that it had been obtained by force and threats. However, it was admitted and was before the jury for their consideration.

8. In his evidence, the applicant gave an entirely different version of what he said had occurred. He said that the father having returned home and having seen that the house was in a mess, scolded, abused and slapped him and then grabbed his neck and that he felt very frightened. He said that he was trying to get away from his father and, while so doing, reached for a leather belt and tied his father up with it. He said that his father then freed himself from the belt and took up a fruit knife and rushed at him and that he grabbed hold of his father's hand which was holding the knife and there was a struggle and that "somehow" the knife stabbed his father's throat. He said he could not recall ever having got hold of the knife but that he thought the knife had pierced his father's throat while they were on the ground.

9. It is important when considering this appeal to isolate the issues raised by the applicant's cautioned statement and by his evidence.

10. In both, the issue of self-defence is raised. In the former, the indication was that the death occurred as the result of a deliberate act during self-defence. In the latter, the indication was that the death occurred accidentally while the applicant was defending himself.

11. A further important issue at the trial was the defence of diminished responsibility. The defence called a Dr. W.T. Yu who said that he was satisfied that the applicant was suffering from an abnormality of the mind induced by illness, namely a major depression, at the time of the incident which would have substantially impaired his mental responsibility for the act of killing. This was clear evidence of diminished responsibility.

12. Dr. Lo Chun-wai, who was called by the Crown, said that he was satisfied that the applicant was not suffering from any abnormality of the mind and described his condition as being no more than a transient episode of unhappiness. The conclusions of the two medical witnesses were clearly diametrically opposed.

13. The first ground of appeal argued by Mr. McCoy was in the following terms:

We do not consider it necessary to canvass this ground at any length. In the circumstances of this offence, the victim having died from a deep stab wound in the throat, we have no doubt that the judge's description "some serious bodily harm" was a perfectly adequate one. We observe only that as a general rule we think it desirable that the formula "really serious bodily harm" should be used when explaining to the jury the meaning of the words "grievous bodily harm".

The passage to which objection was taken reads as follows:

"Self-defence is lawful when it is necessary to use force to resist or defend yourself against an attack, or a threatened attack, and - this is very important - when the amount of force that you use is reasonable.

I will read that to you just once more - self-defence is lawful when it is necessary to use force to resist or defend yourself against an attack, or a threatened attack, and when the amount of force that you use is reasonable.

Now, members of the jury, what is reasonable force depends, as you must appreciate, upon all the facts of the particular case including the nature of the attack, whether or not a weapon was being used, and if it was, how and what kind of weapon it was and, of course, whether or not the attacker was on his own or with other people. Well, in this case you know it was just the father against the son. There was no one else involved.

It is very important for you to appreciate that the person defending himself cannot be expected to weigh precisely the amount of defensive action which is necessary. If, therefore, you were to conclude that the defendant did no more than he instinctively thought was necessary, you should regard that as very strong evidence that the amount of force was reasonable and necessary, because it is for the prosecution to prove his guilt. It is for them to satisfy you so that you feel sure that the defendant was not acting in self-defence.

If you conclude that he was or that he may have been acting in self-defence, then you will obviously acquit him.

Failure to retreat, failure to run away from the incident when attacked and when it is possible and safe to do so, are not conclusive factors. It is simply a factor to be taken into account when deciding whether it was necessary for the defendant to use force, and whether the force used was reasonable."

The passage deals with the issue raised by the cautioned statement. Particular exception is taken by Mr. McCoy to the use of the words emphasized.

14. It was his submission that a direction in accordance with the ruling in R. v. Beckford [1988] AC 130 should have been given. He referred firstly to the earlier cases of Palmer v. R. [1971] AC 814 and R. v. Shannon (1980) 71 Cr.App.R.192. Lord Morris in Palmer v. R. said at p.831, when dealing with the issue of self-defence:

"In their Lordships' view the defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. It requires no set words by way of explanation. No formula need be employed in reference to it. Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. Of these a jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have to avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence. Of all these matters the good sense of a jury will be the arbiter. There are no prescribed words which must be employed in or adopted in a summing up. All that is needed is a clear exposition, in relation to the particular facts of the case, of the conception of necessary self-defence. If there has been no attack then clearly there will have been no need for defence. If there has been attack so that defence is reasonably necessary it will be recognized that a person defending himself cannot weight to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonably defensive action had been taken.  A jury will be told that the defence of self-defence, where the evidence makes its raising possible, will only fail if the prosecution show beyond doubt that what the accused did was not by way of self-defence. But their Lordships consider, in agreement with the approach in the De Freitas case (1960) 2 W.L.R. 523, that if the prosecution have shown that what was done was not done in self-defence then that issue is eliminated from the case. If the jury consider that an accused acted in self-defence or if the jury are in doubt as to this then they will acquit. The defence of self-defence either succeeds so as to result in an acquittal or it is disproved in which case as a defence it is rejected." (Our emphasis.)

The summing-up of Kaplan J. appears to have relied upon the passage emphasized but to have omitted the world "honestly". It seems clear that Lord Morris was holding that the jury should be directed that if the person attacked honestly and instinctively did what he thought was necessary that would be most potent evidence that his actions were reasonable. The assessment of what was a reasonable response was an objective one but when making that assessment the jury was required to regard an honest and instinctive reaction as potent evidence. The focus is upon the response of the person defending himself.

15. Palmer v. R. was approved and followed in R. v. Shannon (1980) 71 Cr.App.R. 192 in which Ormrod L.J., at p.197, said:

"But on the issue of self-defence he (the trial judge), effectively excluded the state of the accused's mind. In other words by leaving that issue to the jury on the bald basis of 'Did the appellant use more force than was necessary in the circumstances?', the learned judge may have precluded the jury from considering the real issue, which, to paraphrase Lord Morris in Palmer v. R. was 'Was the stabbing within the conception of necessary self-defence judged by the standards of common sense, bearing in mind the position of the appellant at the moment of the stabbing, or was it a case of angry retaliation or pure aggression on his part.' "

16. Ormrod L.J., paraphrasing Lord Morris, was satisfied that "the real issue" was whether the response was "within the conception of necessary self-defence judged by the standards of common sense", i.e. was reasonable, "bearing in mind the position of" the person being attacked. The focus is again upon an assessment of the response, but when giving consideration to the reasonableness of the response, the position of the defendant, i.e. the danger in which he found himself, has to be borne in mind.

17. In the former case Lord Morris said that an honest and instinctive reaction was "potent evidence" when assessing the reasonableness of the response while in the latter, Ormrod L.J. said that the position of the appellant had to be "borne in mind" in that assessment. The focus in both cases was upon the response. The assessment thereof, in each, was objective but each indicated evidentiary matters which contained subjective elements to which weight should be given.

18. The decision of the Privy Council in  Solomon Beckford v. The Queen [1988] AC 130 moved the focus from the assessment of the response to the assessment of the danger as seen by the person being attacked and squarely introduced a substantial subjective element into that assessment.

19. Lord Griffiths delivering the judgment of the Board referred to R. v. Morgan [1976] A.C. 182 which held that in a rape case a defence of belief that the woman was consenting even if not based on reasonable grounds would succeed if the prosecution failed to prove that it was not genuine.

20. He held, at p.144, that:

"If then a genuine belief, albeit without reasonable grounds, is a defence to rape because it negatives the necessary intention, so also must a genuine belief in facts which if true would justify self-defence be a defence to a crime of personal violence because the belief negatives the intent to act unlawfully." (Our emphasis)

He went on to approve the following passage in the judgment of Lord Lane C.J. in Reg. v. Williams (Gladstone) (1984) 78 Cr. App. R. 276 as correctly stating the law of self-defence:

"The reasonableness or unreasonableness of the defendant's belief is material to the question of whether the belief was held by the defendant at all. If the belief was in fact held, its unreasonableness, so far as guilt or innocence is concerned, is neither here nor there. It is irrelevant. Were it otherwise, the defendant would be convicted because he was negligent in failing to recognize that the victim was not consenting or that a crime was not being committed and so on. In other words the jury should be directed first of all that the prosecution have the burden or duty of proving the unlawfulness of the defendant's actions; secondly, if the defendant may have been labouring under a mistake as to the facts, he must be judged according to his mistaken view of the facts; thirdly, that is so whether the mistake was, on an objective view, a reasonable mistake or not.

In a case of self-defence, where self-defence or the prevention of crime is concerned, if the jury came to the conclusion that the defendant believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime, then the prosecution have not proved their case. If however the defendant's alleged belief was mistaken and if the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected. Even if the jury come to the conclusion that the mistake was an unreasonable one, if the defendant may genuinely have been labouring under it, he is entitled to rely upon it." (Our emphasis.)

21. The test of the reasonableness of the response remains objective but the objective assessment must be made in the light of the seriousness of the attack as the defendant honestly believes it to be and it is not material that his belief was a mistaken one as long as it was honestly held.

22. The focus is now upon the honesty of the belief of a defendant as to the seriousness of the attack and, in the light of that belief, the reasonableness of the response must be judged. The critical factor is whether the person being attacked honestly, perhaps "genuinely" is a better word, believed the attack to be a serious one against which he had to defend himself. If he did, then the reasonableness of his response must be judged in accordance with that belief. If the jury was satisfied that he did not honestly believe the attack to be one requiring self-defence then a plea of self-defence would fail. If they were satisfied that he honestly believed the attack to be one requiring self-defence or if they considered that he might honestly have had that belief, then self-defence will avail him if the force he uses is reasonable given that belief. The position is succinctly put by Lord Griffiths in Beckford at p.620 when he states:

".....the test to be applied for self-defence is that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another."

While such a test can be simply formulated, situations in real life are, not infrequently, so complex and confused that application of the test is fraught with difficulty. It is common sense that in practice the belief as to the seriousness of the situation and the response thereto are often so interlinked that the latter may well be a factor of real weight in the ascertainment of the former. The direction in the present case that instinctive reaction was strong evidence that the amount of force used was reasonable was, in the light of the decision in Beckford, wrong. It failed to deal with the subjective element. The jury should have been told that, if they accepted or thought it might be possible that the defendant genuinely believed that he was under attack, they must judge the reasonableness of his reaction to that attack in the light of that belief. There was for these reasons a misdirection on the issue of self-defence.

23. We fully appreciate the concern of counsel with regard to this ground. It was apparent that the judge was not greatly impressed by the doctor who gave evidence for the Crown and was much more impressed by the doctor who gave evidence for the defence stating that he was satisfied that the defendant was suffering from diminished responsibility at the time he committed the crime. However, this was a matter of fact for the decision of the jury. The trial judge was at pains to outline the evidence of both experts and left the matter squarely for the jury's decision. In such circumstances we do not consider that we could properly regard their veidict as being either unreasonable or perverse.

24. There was, we are satisfied, a "head-on clash" between the conclusions of the medical experts and the judge was quite entitled to refer to it in those terms. It is, further, far from correct to say that he focussed the jury's attention only upon that. He made it plain to them before he commenced to canvass the medical evidence that it must be looked at in the light of all of the evidence in the trial by saying:

"Now, although the medical evidence is important when you are considering this element, you must consider not only the medical evidence but the evidence as to the whole facts and the circumstances of the case, including the nature of the killing, the conduct of the accused person before, at the time of and after it and any history of mental abnormality. You must approach the question in a broad commonsense way."

This was an eminently correct and sensible direction and we have no doubt that the jury had their minds properly directed to the way in which they should approach the medical evidence.

The passage to which exception is taken reads as follows:

"Of course, you are going to have to make up your mind which of those two very different versions you accept."

It is true that the jury did not have to make up their minds which of the two versions they accepted.  They had only to decide whether they were prepared to give sufficient credence to one or to the other to occasion them a reasonable doubt as to whether either self-defence or accident had been disproved. We are, however, in the light of the clear and repeated directions as to the onus that lay on the Crown in no doubt that the jury must have understood that direction to mean that they should look at the two versions to see whether they gave to either of them sufficient credence to raise a doubt.

25. Mr. McCoy submitted that, as the applicant had in his statement given a version which was in material conflict with the version which he gave in his evidence, the jury would, if they gave credence to one story as against the other, have concluded that the applicant had told lies, or indeed, would, if they rejected both versions, have concluded that the applicant had lied in both. It was his submission that this was a case which called for a careful direction of the kind referred to in Broadhurst v. The Queen [1964] A.C. 441 as to the use which the jury could make of lies. Mr. McCoy conceded that such a direction is not necessary in every case but submitted that this was a classic example of the kind of case which requires such a direction. We are satisfied that it was not enough, given the facts of this particular case, for the judge simply to direct the jury, as he carefully did on more than one occasion, as to the onus which lay upon the Crown and to leave to their common sense the use which they would make of any lies they considered had been told. Given that the applicant had put forward conflicting versions neither of which the jury may have believed, this matter required a specific direction that lies might be told in circumstances such as this out of panic and or because of fear not because of a consciousness of guilt.

This ground arises out of an observation by the trial judge at judge at the commencement of his summing-up when he said:

"No question of accident arises, and the killing itself, as you know from the admitted facts, is admitted. So you have to concentrate all the way through on the question of intention."

This observation appears to overlook the issue of accidental death in the course of self defence raised by the applicant in his evidence. Mr. McCoy submits that by the use of these words, the judge clearly took away from the jury any consideration of an accident.

26. Mr. Cross, Q.C., who appears with Mr. Cheung for the Crown, submits that the trial judge did not by these words remove such an issue. It is his submission, as we apprehend it, that what the judge was saying here was that there was no suggestion that the death was an act of God as the fact that a killing took place was admitted. He submitted that the trial judge had clearly left accident to the jury as he had outlined fully the evidence of the applicant during his summing-up in which he clearly raised accident. Mr. Cross also relied upon the passage in the summing up where the judge said:

"So, what all this leads to is this. First, you must decide what happened on that fateful evening. Decide what version of facts you accept, and having done that, then apply the legal principles upon which I have already directed you."

He suggests that this was a clear direction to the jury to consider all of the evidence and that, as the evidence coming from the applicant was that the death was accidental, he left that matter for the consideration of the jury. We are unpersuaded by this argument. Despite the evidence of the applicant that the death occurred accidentally while he was defending himself, the jury had a clear direction that "no question of accident arose". Accident in the context of self defence was an issue and the jury should have been so directed.

27. It was Mr. Cross's further and alternative submission that, though accident was raised, it was raised in such a tenuous way that it was right for the judge to indicate to the jury that they were not called upon to consider it. We cannot agree. There was nothing tenuous about the evidence of the applicant nor was there about the reliance placed thereon by the late Mr. Francis Eddis Q.C. in his closing address for the defence.

28. Before leaving this matter, we feel it appropriate to remark that, while judges do sometimes, as was done in the present case, hand to juries written summaries of their directions on the law in an endeavour to assist them, in our view this practice should be sparingly used. While it is for the trial  judge in each case to make his own determination, we caution that brief summaries can sometimes mislead rather than assist.

29. For the reasons set out above, the application for leave to appeal against conviction is granted. The hearing of the application is treated as the hearing of the appeal and the appeal is allowed.

[Re-trial ordered.]

Representation:

Mr. I.G. Cross Q.C. and Mr. W.S. Cheung (Crown Prosecutors) for the Respondent.

Mr. G.J.X. McCoy (Messrs. So & Co. ) for the Applicant.