Tsang Ching Hon v. The Queen
Read the full judgment text of CACC 533/1976 on BabelCite. This Court of Appeal judgment.
1. The appellant appeals against his conviction for murder. He and the deceased together with a third man, all farm workers, shared the upper room of a two-storeyed wooden structure. The third occupant of the room last saw the deceased alive at about 10 p.m. on 7th October 1975 when he left the appellant and the deceased in that room. At about 11.15 p.m. the appellant entered a nearby hut and told the occupants thereof that three teddy boys had entered his room and attacked him and the deceased;
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CACC000533/1976
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----------------- Coram: Pickering, Ag. C.J., McMullin, Ag. J.A. & Leonard, J. Date of Judgment: 12th August 1976. ----------------- JUDGMENT ----------------- Pickering, Ag. C.J.: 1. The appellant appeals against his conviction for murder. He and the deceased together with a third man, all farm workers, shared the upper room of a two-storeyed wooden structure. The third occupant of the room last saw the deceased alive at about 10 p.m. on 7th October 1975 when he left the appellant and the deceased in that room. At about 11.15 p.m. the appellant entered a nearby hut and told the occupants thereof that three teddy boys had entered his room and attacked him and the deceased; the evidence of one of the occupants of the second hut was that the appellant appeared at that time to be frightened, was crying and trembling and had a bruise on the nose and scratches on his cheek, hands and forearms. 2. The deceased was then found lying on the ground outside the hut the upper room of which he had occupied in conjunction with the appellant and the third man; he was covered in blood and was pronounced dead on arrival at the hospital. The cause of death was asphyxia due to the inhalation of blood from injuries to the mouth. 3. The appellant made four statements to the police in the first and second of which he maintained his story of an attack by teddy boys. Shortly after six o'clock in the evening of 8th October, however, the appellant made a further statement retracting the story about teddy boys and confessing to the killing. He subsequently took the police to some bushes, about fifty yards away from the entrance of the farm in which his room was located, where a leather suit-case belonging to the deceased was recovered. This third statement of the appellant described how he and the deceased were alone in the room, the deceased lying on his bed; how the appellant, intending to rob the deceased, attacked the latter with a small wooden stool intending to knock him unconscious and then take his money; how the deceased saw the appellant coming, took a dinner knife from the top of the table next to him and struck back at the appellant; how a struggle ensued with one man using the stool and the other the knife and how eventually the deceased fell to the floor, groaning, whereupon the appellant made to take away the deceased's suit-case; how at this stage the deceased tried to get to his feet but, being unsteady on his legs, fell from the unrailed space outside the back door together with a cloth bed after which the appellant hid the suit-case in the bushes and went to the next hut to tell the people there that three teddy boys had robbed him and the deceased. 4. The appellant's fourth statement, which was that in answer to the charge, substantially confirmed the contents of his third statement. 5. In his evidence the appellant changed his story and said that as he was boiling water in the room, the deceased was repairing a stool and for that purpose using a chopper as a hammer to drive home nails. Suddenly a small piece of metal flew through the air and injured the appellant piercing the skin of his left shin whereupon he pointed his finger to the forehead of the deceased and swore at him at which the deceased made to chop the appellant who warded off the blow with his forearm and attempted unsuccessfully to snatch the chopper from the deceased. In the course of the subsequent struggle the deceased fell to the floor whereupon the appellant released his grip upon the deceased who was still holding the chopper. The deceased then got up from the floor, rushed towards the appellant in a franctic manner and threw the chopper at him though the appellant managed to dodge so that the chopper did not hit him. At this stage, the appellant's evidence continued, the deceased lost his balance, tripped over a folding chair and fell, together with the chair from the rear entrance to the ground below. 6. Photographs which were put before the jury showed very extensive injuries to the upper body, face and scalp of the deceased. 7. The sole ground of appeal was that the judge had not left the issue of provocation to the jury. Mr. Niamatullah, for the appellant, approached his task in a manner which appeared to the court to be somewhat devious with the assumption that the version of events which the jury was most likely to have believed was that contained in the appellant's third statement, namely the attempted robbery from the deceased by the appellant. The more obvious claim that the deceased's actions in attempting to chop the appellant and subsequent throwing of the chopper may have amounted to provocation, was not pursued with any conviction by Mr. Niamatullah although this was the approach which had from the first commended itself to the court. 8. Mr. Little, for the Crown, argued that the version of events put forward by the appellant in his evidence as opposed to the version of attempted robbery contained in his third statement was so implausible as to have been extremely unlikely to have commended itself to the jury. Indeed Mr. Little went so far as to suggest that in order to accept this version the jury would have to indulged in speculation. We are unable to agree that the acceptance by a jury of these alleged facts, put forward by way of evidence, could amount to speculation. We do agree, however, that that part of the appellant's evidence which related to the accidental fall of the deceased from the upper storey of the hut was one which no reasonable jury was likely to have believed. The earlier section of that evidence, however, relating to the flying of a metal chip which struck the appellant on the shin, to the subsequent cursing of the deceased by the appellant, to the attempted attack upon the appellant by the deceased with a chopper and to the throwing of the chopper at the deceased are all matters which are not inherently incredible. It is true that when they are set against the version of events put forward in the appellant's third statement, they may be less susceptible of belief than that latter account. Clearly both versions could not be accepted by the jury but which one, if either, was to be accepted was essentially a matter for the jury and if the version put forward by the appellant in evidence was to be accepted, then there existed material which when coupled with the appellant's injuries could clearly have amounted to provocation and that issue should have been left to the jury. 9. The matter which was well put by Lord Tucker in the case of Bullard v. Reg.(1) where he said:
10. We think that passage is exactly apt in the circumstances of the present case. 11. The learned judge did in fact leave the possibility of a verdict of manslaughter open to the jury but this was on the basis of an intention to do less than grievous bodily harm. There remained the possibility of a verdict of manslaughter by reason of provocation and the appellant's opportunity of such a verdict was denied him. It was for these reasons that we allowed the application, quashed the verdict of murder and substituted it by one of manslaughter whilst at the same time setting aside the sentence of death and imposing a sentence of twelve years' imprisonment. Representation: A.M. Niamatullah (D.L.A.) for appellant D. Little, C.C., for respondent. (1) 1957 A.C. 635, 643. |