Chung Cho-hin v. The Queen

CACC000470/1977

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

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

Coram: Briggs, C.J., Pickering, J.A. and Cons, J.

Date of Judgment: 9th September 1977.

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

JUDGMENT

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

Cons, J.:

1. The appellant was found guilty of two counts of murder. It is not necessary to go deeply into the facts. In short the appellant had a violent altercation with his elderly great aunt when the great aunt refused to lend him money. The great aunt's amah came to her assistance but in no time at all the appellant had killed them both. The amah died of a broken head, the great aunt from multiple chop wounds.

2. There were some matters brought out in the evidence which the learned Commissioner saw fit to leave to the jury as possibly amounting to provocation. It was argued before us that there were other matters which he wrongfully withdrew from their consideration in this respect and that he did not adequately direct them on the true meaning of provocation. We do not think there is anything in these arguments. However, there is substance in a further argument that he failed to direct the jury adequately on the burden of proof. The classic authority on this is R. v. McPherson⁽¹⁾. The headnote to that case reads:

"Where on a charge of murder provocation is relied on by the defence, the jury should be directed that the onus of proving absence of provocation remains throughout on the prosecution, and that, if the jury are left in doubt whether the facts show sufficient provocation to reduce the killing to manslaughter, that issue must be determined in favour of the prisoner."

3. The learned Commissioner directed the jury very correctly on the general burden of proof but nowhere in the summing-up did he remind them of that burden in relation to provocation, nor in particular did he mention that if they were left in doubt whether or not the facts showed sufficient provocation to reduce the killing to manslaughter, that issue had to he determined in favour of the appellant. We therefore found ourselves forced to set aside the convictions for murder and substituted therefor two convictions for manslaughter. In all the circumstances we came to the conclusion that the proper sentence for each offence was one of fourteen years' imprisonment, the terms to be served concurrently.

Representation:

Miss Ida Cheung (Director of Legal Aid) assigned for the appellant.

G.W. Alderdice, Crown Counsel, for the respondent.

(1) 41 Cr. App. R. 213