The Queen v. Leung Yuet Man

CACC000456/1989

BETWEEN

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Coram: Hon. Sir Derek Cons, Acting C.J., Clough, J.A. & Barnes, J.

Date of hearing: 2 August 1990

Date of delivery of judgment: 27 September 1990

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JUDGMENT

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Sir Derek Cons, Acting C.J., delivered the judgment of the Court:

1. For ten years, from 1978 to March 1988, Mr. Leung Yuet Man ("the Defendant") was working as a mechanic in a textile factory. He then gave up his job, complaining of the long working hours and hoping to find employment in a different environment. However until January last year he managed to find apparently only casual employment.

2. On the evening of the 8th January he decided to go to Macau to gamble. He there played baccarat in the Casino Jai Alai until two in the morning, by which time he had lost all the money he took with him. He then happened to meet a loan shark, a Mr. Wong Kwong Chee ("the Deceased") who had lent him money on a previous occasion and who, with his current partner, was only too willing to do so again. The two men accompanied the Defendant back to the gambling tables but there, as he put it, the "luck was against (him)", and by four o'clock all the borrowed money had gone as well. He spent the rest of the night in a hotel room with the two men.

3. Next morning the usual telephone calls produced no comfort for the Defendant and at about 8 o'clock he embarked, escorted by the Deceased, for Hong Kong. On the way he sighed an IOU for the money he owed.

4. Having reached Hong Kong more telephone calls were made, first from a restaurant in Mongkok and subsequently from the Defendant's home where the Deceased had eventually suggested the Defendant should take him. All the calls proved fruitless.

5. It is common ground that at some stage thereafter the Deceased fell asleep. The Crown's case to the jury, which eventually came to try the Defendant on a charge of murder before Hooper J., was that the Defendant then struck the Deceased with a marble ashtray; that the Deceased woke up and attacked the Defendant, whereupon the Defendant attacked him again many times with the ashtray; that the Deceased fell to the floor where the Defendant strangled him with the flex from an electric rice-cooker.

6. The Crown's case was based on 1. statements given to the police by the Defendant that same evening, after his brother had taken him to the Kwai Chung Police Station sometime after three in the afternoon, and on 2. a video re-construction of the crime in which the Defendant had later participated.

7. To the jury the Defendant gave a different story. He said that before the Deceased fell asleep the Deceased had suddenly stood up, kicked him on both legs, slapped his face, called him a four-eyed boy and said that he was not going to be nice to him; the Deceased then said that since the due time for payment had already passed $500 would be added to the debt and $1,000 for every other hour; the Defendant picked up his glasses which had been knocked off in the assault, and as he put them on a teapoy noticed that the Deceased was asleep; being angered at the unnecessary treatment he had just received he approached the Deceased and slapped him once with a view to getting the IOU from the jacket the Deceased was holding in his hand; at that the Deceased sprang up, pushed him down on the bed and lay on top of him, hitting him; the Defendant tried hard to get him off, and while doing so picked up from the teapoy the ashtray with which he hit the Deceased several times; at that the Deceased seemed to go mad and struck the Defendant with all his might; the Defendant managed to slide off the bed and the struggle continued beside it; suddenly the Deceased slipped and fell, knocking the ashtray from the Defendant's hand; down on the floor he caught hold of the Defendant's leg and would not let go; unable to get rid of the Deceased's hold by kicking, the Defendant took the electric flex, wound it round the neck of the Deceased and held it there until he noticed the Deceased was motionless.

8. In view of this evidence the judge left both provocation and self-defence to the jury. It is with these two issues that the grounds of appeal put forward in support of this application to appeal against his conviction are mainly concerned.

Provocation

9. The judge dealt with provocation three times in the course of summing up. Initially he directed the jury in considerable detail when setting out the law as to murder and manslaughter.  He referred to the basic elements again, and illustrated them with a practical example when, having once retired, the jury returned with the curious question "what is the term provocation?" He repeated the essential questions when the jury came back a second time with the question "is manslaughter under the classification of murder i.e. manslaughter is a kind of murder?".

10. Throughout his explanations of the need for something to cause in the Defendant a sudden and temporary loss of self-control, the judge referred to the Deceased's conduct or provocation by the Deceased. R. v. Davis (Peter) [1975] Q.B. 691 is authority that, at least since the passing of Section 3 of the Homicide Act, i.e. Section 4 of the Homicide Ordinance in this jurisdiction, matters which could  amount to provocation are not excluded merely because they emanate from someone other than the victim. It was not correct, therefore, as a matter of law for the judge to limit the consideration of the jury to the conduct of the Deceased. But in the particular circumstances that is all there was. Mr. McCoy, who appears for the Defendant in this application, has suggested as possible provocation, apart from the assault in the flat, only the restraint imposed upon the Defendant in Hong Kong, i.e. his being shepherded around by someone whom even crown counsel described as "a nasty type", and the increasing pressure on repayment of further interest. Both of these comprised the conduct of the Deceased and were thus within the contemplation of the jury according to the judge's direction.

It is suggested that the judge erred as to the standard of proof.

11. Earlier in the summing-up the judge had dealt generally with the burden and standard of proof and what is meant by a reasonable doubt. He had explained that the Crown had to prove its case beyond reasonable doubt and added, as is usual, that the jury had to be sure of the Defendant's guilt before convicting him. No other standard of proof was mentioned in the summing-up and we have no doubt that when the jury heard the words "to your satisfaction" in the passage referred to, they would without hesitation have accepted that. their satisfaction had to be beyond reasonable doubt.

12. The third criticism is that the judge restricted the jury's consideration of provocative conduct to the conduct of the Deceased "immediately before he was killed". This would, it is said, unjustifiably exclude the earlier conduct to which we have already referred.

13. To deal with this criticism it is necessary to quote more fully from the summing up:

"          Provocation has been found to exist in some quite innocuous remarks or conduct where coupled with previous remarks and conduct viewed cumulatively it has the effect of triggering off an explosive action in the accused which makes him temporarily not master of his own mind. Although it might seem quite innocuous on its own, viewed cumulatively it might be regarded as being the last straw which breaks the camel's back. You may look at the deceased's behaviour and conduct towards the defendant up to the time of his death in determining whether his conduct immediately before he was killed provoked the accused to lose his control of himself and to kill the deceased in the way he did."

Taken in their context the words complained of do not have a restrictive effect. Indeed, they tend to the opposite, forming as they do part of an overall direction to look beyond what may at first appear to be the only operative conduct. It is a kind of direction commonly given by judges to juries, that is, when the circumstance's so warrant. With respect to the judge below we do not think this was such an occasion. It is difficult to envisage anyone finding the abuse and assault to which the Defendant testified "quite innocuous remarks and conduct". Nevertheless, unnecessary as it was, we are not persuaded that the passage, or the particular words in it, misled the jury into thinking that they were bound to ignore what had gone before or, on the other hand, to confine themselves to the very short period in which the Deceased was said to have fallen asleep.

14. We find accordingly no substance in the grounds based on provocation.

Self-defence

15. It will be useful first to set out in full what the judge had to say:

"          Now the defendant, I mentioned, has hinted, you may think, in his evidence at self-defence. Even though you may consider it rather tenuous I think perhaps I should still explain it to you because if a man kills in self-defence, it is not an unlawful killing and, members of the jury, in order to be guilty of either murder or manslaughter it must be an unlawful killing.

A man who is attacked or assaulted in circumstances which lead him to believe his life is in danger or that he might suffer harm is entitled in law to use such force as on reasonable grounds he believes is necessary to resist the attack and to prevent harm to himself. He is then acting in self-defence. If he fears for his life and if he in using reasonable force he kills his assailant, he is not guilty of any crime even if the killing is intentional.

The defence of self-defence is subject always to the accused's act being done in self-defence as well as being reasonable in the circumstances so far as he was aware having regard to the conditions prevailing at the time. There is all the difference in the world between fighting someone in self-defence and fighting someone because of a grudge. The force used by the accused must have been exerted to protect himself and not prompted by any desire to take revenge or to punish the victim.

In deciding whether the accused was acting in self-defence, regard must be had to all the circumstances of the case including an opportunity for the accused to retreat. If you find there was such an opportunity, then that would be a fact for you to consider in determining whether there was a fight in self-defence or not. The question that you ask yourselves is this, is it possible the accused was acting in self-defence and, if so, did he do no more than was reasonably necessary in the circumstances to protect himself or has he been proved by the prosecution to have not been acting in self-defence and to have gone further than was reasonable in defending himself and in fact punishing the victim?

If excessive force was used or a large number of injuries were caused, this may afford evidence that it was not done in self-defence and was hence unlawful. However, you should remember that a person who is defending himself against being killed or seriously wounded or being wounded in one form or another cannot always weigh to a nicety what he should do and what he should not do in the circumstances or what is always the appropriate amount of force commensurate with the attack which he is expecting or receiving upon himself.

Finally, on this question of self-defence, it follows from what I have told you before that it is not incumbent upon the defendant to prove that he was acting in self-defence. The burden is on the Crown to prove that he was not."

and later, when in effect he was putting the jury's task in a nutshell,

"I don't really think you will be troubled with the self-defence aspect of the defendant's evidence but I think in view of the fact that there has been some reference to him trying to get away and there being no way out, as it were, that should be mentioned as well."

16. Our attention has been drawn to two authorities on this aspect of the application: R. v. Beckford [1988] AC 130 and R. v. Shannon [1980] 71 Crim.App.R. 192.

17. Beckford updated the Common Law in the light of the decision of the House of Lords in R. v. Morgan [1976] AC 182. It is now no longer necessary for a defendant to show that he reasonably believes himself to be in danger. It is sufficient to show that he honestly believes that to be so. Beckford turned upon the defendant's suggested misunderstanding of the circumstances which confronted him. No question of that arises in the present instance.

18. Shannon, a decision of the English Court of Appeal, confirms that although the use of force by a defendant has to be objectively reasonable, the state of mind of the defendant.; at the time is not to be excluded from consideration.  Reliance was placed upon the words of Lord Morris in giving the advice of the Privy Council in R. v. Palmer [1971] AC 814 at 831:

"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 reasonable defensive action had been taken."

19. Shannon has been followed by another division of this Court in R. v. Choi Hok Man unreported Crim. App. No. 16/89 17th July 1990, quoting (inter alia) the passage where Ormrod L.J. at p. 197 had paraphrased Lord Morris in Palmer to define the real issue as:

"Was this 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."

With the substitution of "strangling" for "stabbing", a direction in those words would have been apposite in the present instance. The judge did not put it that succinctly, but taking the direction as a whole we are satisfied that that was the message which the jury would have understood.

Lies

20. The final matter we must deal with is a ground of appeal in these words:

The facts in Broadhurst are material. The defendant, who lived in a first-floor flat in Malta, returned home very late from a dance at which he had imbibed a great deal of alcohol. His wife had left the dance earlier to relieve the baby-sitter. Subsequently the downstairs neighbours were awoken by the noise of running about above and banging on the stone staircase outside. They heard the wife on the staircase say, "Stop it Malcolm or you will kill me", and shortly after that the defendant, "That's the end of that". Ten minutes later the defendant rang their doorbell and said that he had thrown his wife down the stairs.

21. At the trial the defendant's evidence was that, apart from one incident on the way home, he remembered absolutely nothing after leaving the dance until he saw his wife lying on the stairway in a pool of blood. We quote now from the advice of the Privy Council given by Lord Devlin:

"The Crown contended that the loss of memory was faked, that is to say, that in this vital matter the accused was seeking to protect himself by a lie.

It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused."

22. The present situation is far removed from that in Broadhurst. The Defendant here was making a positive assertion as to what happened during the incident itself, a version of the affair that would open the possibility of provocation. Crown counsel urged the jury, and in strong terms, to reject that version. We do not know whether the jury did so or not, for they may have concluded that it was true, or likely to be true, but nevertheless did not amount to provocation. On the other hand, if they did decide the Defendant was lying in the witness box, we are not persuaded that they would have convicted him for that reason "without more ado". They would have convicted him because they were sure, as the judge told them they had to be, that his earlier statements were true. A Broadhurst direction was not necessary.

23. For these reasons we are satisfied that the grounds put forward in support of this application would not succeed on appeal and therefore the application is refused.

Representation:

J. Abbott, Crown Prosecutor for the Respondent

G.J.X. McCoy (D.L.A.) for Applicant