Chan Wing-siu and Others v. The Queen

CACC000540/1981

Headnote: munder: contemplation that a knife "might be used" sufficient for guilt: no direct English Authority: Johns v. The Queen [1980] 54 A.L.J.R. 166 adopted

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Coram: McMullin, V.-P., Li and Silke, JJ.A.

Date: 8 April 1982

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JUDGMENT

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McMullin, V.-P. :

1. The deceased, CHEUNG Man-kam, lived with his wife, LAM Pui-yin, in a flat on the 1st floor of No. 78, Block A, Lok Shan Road, Tokwawan.

2. Some time between 1.00 p.m. and 2.00 p.m. on the 31st of May 1980, in answer to a ring upon the doorbell, Madam Lam opened the door. Three men rushed in and almost at once attacked her husband who was in the kitchen of the premises. One of the number inflicted upon him a number of serious wounds from which he died a short time afterwards. Madam Lam herself received a slight head injury inflicted with a knife. The three men then left the flat and ran away leaving behind three knives two of which were heavily bloodstained with blood of the same group as that of the deceased. The third knife showed some spots of blood, too small for grouping. That was the story as told by Madam Lam.

3. It was never in dispute that the three appellants were the three men who were involved in this affair.

4. The prosecution case rested upon the testimony of Madam Lam. It appears that with her husband's consent, she was carrying on the trade of a prostitute at those premises and that she regularly placed advertisements, suitably worded, in several Chinese newspapers to indicate the availability of her services.

5. She told the court that when she heard the doorbell ring on this occasion, she peered through the spyhole and observed a man outside and assumed that he was a prospective customer. She said that as soon as she opened the door, two other men suddenly dashed from around a corner nearby and all three made to enter the flat. She endeavoured to close the door but was thrust aside and one of the men stayed with her near the door, told her to kneel down and kept guard upon her while the other two rushed towards the kitchen to which her husband had discreetly withdrawn assuming, as she had done, that a customer was in the offing.

6. At thirty-five minutes past two on the same day, the second appellant presented himself at the casualty department of Queen Elizabeth Hospital. He was found to have a number of serious injuries including a 2½ inch wound in the left side of his face involving the left side of the nose and penetrating the oral cavity. There was a compound fracture of his hard palate. He also had a wound on the left shoulder involving a chipped fracture of the scapula. There were two superficial cut wounds on his right flank. These wounds were all treated on the spot. He was given analgesics and antibiotics and he was discharged on the 2nd of June.

7. Some fifteen minutes after the second appellant had been admitted to casualty, Madam Lam attended the same department and was treated for a 1 inch wound over the left parietal region and bruising over the forehead.

8. Some five minutes later the first appellant turned up at casualty where upon examination, he was found to have a wound over the right parietal region and a linear fracture of the centre table of the skull. These wounds were also treated and he, too, was discharged on the 2nd of June.

9. While she was being attended to, Madam Lam saw the first appellant when he arrived for treatment and she pointed to him and said "That's him. He robbed me.". Her evidence was that the first appellant, on hearing this, did not reply but simply bent down his head.

10. The first and second appellants made statements to the police while still in hospital in which they gave false accounts of how they had come by their wounds. Subsequently, they each made a number of statements admitting to having entered Madam Lam's flat on the 31st of May and to having received their injuries in a confrontation with the deceased.

11. The third appellant was not arrested until some three months later. By this time the statements of the other appellants were in the hands of the police and he was shown their statements. He, too, made several statements relating to the charges of murder and wounding which are subject matter of the indictment in this case.

12. None of the three appellants gave evidence in court but the several statements made by them were introduced in evidence by the prosecution and they constituted the only defence put before the court on their behalf.

13. All three maintained that they had gone to Madam Lam's premises on that day to collect a debt which was allegedly owing from her husband to the third appellant.

14. The first appellant, Chan, said that Tse, the third appellant, whom he had not known previously, had been introduced to him earlier in the day by his friend Wong, the second appellant. Tse asked him and Wong to help him collect the debt from the deceased. He said that he had supplied each of them with a knife taken from his own premises and that each of them had concealed his knife in his clothing, their purpose being to protect themselves against any violence that might be offered to them.

15. He went on to say that they went together to Tokwawan in a public light bus and alighted in an area not familiar to him. Tse, he said, was consulting a newspaper. After some time he led them to the flat on the 1st floor of No. 78. Tse pressed the doorbell and a woman answered the door. Tse went into the flat first and he, Chan, followed closely after. But as soon as he got inside, he was struck on the forehead by a hard object and he fell down. He found that he was bleeding from the head and he tried to take his knife from its place of concealment in his sock but was unable to do so because the light was so dim that he could not see who had hit him. He heard a woman cry "No, don't" and there was a sound of violent fighting. He himself was only concerned to get away and as soon as the door was opened, he rushed downstairs and ran for about half an hour until he caught a taxi which took him to the hospital.

16. Subsequently, when he was charged with the murder of CHEUNG Man-kam and with the wounding of Madam Lam, he made a brief statement in answer to each charge. These were to the same general effect as the earlier statements.

17. The second appellant, Wong, in his statement, made on the 1st of June, said that his friend, Tse, had come to seek his help to pursue a debt which was owed to him by a man in Tokwawan. At that time he, Wong, was chatting with the first appellant, Chan, near the latter's premises in Tung Lo Building in Tai Po Road. He said that they went together in a public light bus until they got to the Chung Kiu Emporium Company where they stopped and Tse purchased three fruit knives and gave him and Chan one each, retaining one for himself. The knives were concealed within their clothing in various ways.

18. Thereafter they boarded another bus and were led by Tse to the flat on the 1st floor of No. 78. Tse rang the bell and the door was opened. Tse and Chan entered first. He followed. The woman, who opened the door, shouted "Robbery" and locked the door behind him. A man, whom he saw within holding a chopper, then chopped him on his face once. He then turned to run away but could not open the door. He was then chopped again on the shoulder and on the back near the waist. A fourth blow was aimed at his head but he warded it off with his hand. Then he took out his knife and stabbed his assailant many times and then turned around and ran. The woman at the door was shouting "Robbery" but Tse pushed her away, opened the door and ran out, followed closely by Chan. Then he himself threw down his knife and followed them. He took a taxi to get to the hospital.

19. In answer to the formal charge of murder, he said that he had struck the deceased in self defence. In answer to the charge of unlawful wounding, he denied that he had injured the woman.

20. The third appellant, Tse, in his statement, made upon the 1st of September 1980, said that he had gone with the other two to collect a debt owed to him by the deceased whom he referred to as Fai Lo. He said that, on entering, Fai Lo was seen holding two knives aiming to chop them. He ran to one side and his two friends were chopped and injured by Fai Lo immediately. He saw Wong produce a knife to retaliate but he himself ran to the door and opened it and ran off. He did not know what occurred thereafter.

21. In answer to the formal charge of murder, he said that he did not know that his friends were armed with knives. He himself had only gone there to collect a debt. He was not clear what had happened after he had opened the door and run away.

22. In answer to the formal charge of wounding, he said that he had seen nothing clearly and that he had heard a sound of fighting. Immediately thereafter, he had opened the door and left and did not know the condition inside the premises. He was the first to leave the premises.

23. Madam Lam was unable to identify the person who had struck her on the head. The judge pointed out to the jury, however, that in view of the absence of any injury upon the third appellant, Tse, and in view of the fact that the knife found near the door had spots of blood upon it, the jury might, if they were prepared to accept Madam Lam's story as substantially true, infer that these facts pointed to the third appellant as the person who had stayed guarding her while the other two went to attack her husband, and also as the person who had endeavoured to strike her on the head, but who, in the haste of the moment, had inflicted a comparatively superficial injury.

24. In relation to the charge of wounding with intent to cause grievous bodily harm, the learned judge gave a strong direction to the jury, pointing out that since Madam Lam was unable to identify which of the appellants had struck her, they would find it difficult, in view of the fact that the attackers were then in retreat, to be able to say with certainty that whoever it was had struck her must have shared with the others an intention to inflict such an injury. Nevertheless, he left that charge to them for their decision on the evidence as a whole.

25. The second and less important of the grounds of appeal referred to this matter. Mr. Young submitted that in view of that direction, the jury, in returning a verdict of guilty against all three appellants upon the wounding charge, were, in effect, returning a perverse verdict. We cannot agree. If the jury accepted Madam Lam's evidence as substantially true, it was open to them to conclude that anyone had gone to the premises armed with a knife was prepared to be a party to all the violence offered to any of the inhabitants of the flat. No doubt, that is the conclusion to which they came.

26. The main ground of appeal, however, raises a matter of some interest and considerable difficulty. Mr. Young, who appeared for all three appellants, relies upon a ground which is stated in the following terms :

"The Learned Trial Judge misdirected the jury as to the circumstances in which a murder verdict would be appropriate in that he directed that a defendant should be convicted of murder as an aider and abettor if he thought it possible that a co-adventurer might use a weapon to cause death or serious injury."

27. Counsel drew our attention to passages in the summing-up which appear at pages 6, 7, 17, 18 and 36 therein. It is unnecessary to reproduce each of these passages in full. It may be said that a reasonable paraphrase of the summing-up at large, in relation to this matter, is that the learned trial judge did throughout direct the jury on the basis that a conviction for murder could and should follow if they were satisfied as regards each of the defendants that he foresaw death or grievous bodily harm as a possible, not as a probable, consequence of the enterprise to which he had lent his assistance. This is indicated at these points in the summing-up by the use of words such as "possible" , "possibility", "might" and "may" in relation to the appellants' foresight of the outcome of their acts. Not all of these directions carry precisely the same degree of implication but as a whole it can be said that they do indicate the test as being one of foresight of possible rather than probable grievous bodily harm or death. There are other passages which suggest that the jury must find a positive intent to kill or cause grievous harm but the general cast of the directions is in the mode of foresight of possible consequences.

28. Within the last two decades, decisions in the English courts have afforded material for a debate involving some of the most respected voices on the academic side. The debate is, in the main, concerned with clarifying the notion of mens rea as a necessary ingredient in most criminal offences. In the course of it, we find a close and exacting scrutiny of many familiar terms as, for instance, intention, recklessness, gross negligence, foresight of consequences, knowledge, wilfulness and the like.

29. Mr. Young's argument for the appellants sets out from the standpoint that the law in England is settled in this matter. He argues that it is to the effect that, in order to constitute the mens rea of murder, it must be proved beyond reasonable doubt that the prisoner either did the act which killed or assisted in the doing of it with the foresight of the probability that what he did, or what was being done with his consent, would be likely to cause, at least, grave bodily injury. The test, in other words, is one of probability not of mere possibility. He acknowledges that a different rule seems to prevail in other jurisdictions. In this connection, we were referred to an Australian textbook - Criminal Law by Professor Colin Howard. In the 2nd edition of that work at page 55 under the sub-heading "Recklessness as to the Causing of Death", the learned author says as follows :

"In Victoria, South Australia, New South Wales and Tasmania it is murder for D to kill V by deliberately and unjustifiably undertaking a course of action which he foresees may cause someone's death, even if he does not want to kill anyone. In New South Wales and Tasmania this rule is enacted by statute."

30. This will serve as sighting shot from the Antipodes although, as will later be shown, the author's use of "may" is equivocal. It will be necessary later to return to a fuller consideration of the Australian authorities and in particular to Johns v. The Queen⁽¹⁾ which Mr. Young has sought to distinguish.

31. Those authorities are, of course, not binding upon this court. We are bound, strictly speaking, only by Privy Council decisions and there are none exactly relevant to the present purpose.

32. There has, however, been much discussion amongst academic writers as to the principles to be deduced from certain decisions in the House of Lords. If there could be extracted from these cases, or any of them, a clear statement of principle it would be binding upon this court (see De Lasala v. De lasala⁽²⁾). Unfortunately, it does not appear that any such principle directly upon the point in issue here is to be found in any of the English decisions. In Hyam v. Director of Public Prosecutions⁽³⁾ the House of Lords examined the nature of mens rea in murder in depth. Although the point we are now concerned with was not directly considered, the authority is of such intrinsic importance and has received so much in the way of comment in relation to this topic generally, that it must be referred to for the light incidentally thrown on the present point. Their Lordships' judgments show how problematic this area of the law remains in the United Kingdom.

33. It might be thought unlikely, at this date, that the familiar formula whereby juries are instructed on the necessary mens rea in murder viz.: that it is constituted by an intention to kill or cause grievous bodily harm, should be called in question. This is the formula which was approved by the Court of Appeal in 1957 in R. v. Vickers⁽⁴⁾. Since the decision in DPP v. Smith⁽⁵⁾, it has been the practice of judges both here and in England, following the language employed by Kilmuir, L.C., in that case at page 291, to explain the term grievous bodily harm as meaning any really serious bodily injury. It may be said that this continues to be the classic direction on the subject.

34. Nevertheless, in Hyam⁽³⁾ although the five Law Lords, who dealt with the case, appear to agree that the effect of section 1 of the 1957 Homicide Act was to abolish the doctrine of constructive malice, two of their number (Lord Kilbrandon and Lord Diplock) went further and said that the consequence of that was to make the intent to cause grievous bodily harm no longer a sufficient intent to support a charge of murder. Lord Hailsham, L.C., and Lord Dilhorne would not agree with that. They were satisfied that the trial judge's directions on grievous bodily harm could be supported on the basis that the intent to cause such harm was a type of malice aforethought. They disagreed with him, however, on the form of his direction which, in their opinion, appeared to equate "intent" with "foresight of probability of consequences". Lord Hailsham drew a distinction between "implied" and "constructive" malice and held that whereas the latter had been abolished by the 1957 Act the former had not.

35. Lord Cross was not prepared to decide between the opposing views of Lords Dilhorne and Diplock on the question of grievous bodily harm without having had "the fullest possible argument on the point from counsel on both sides .........". However, he joined the majority in dismissing the appeal but did so on the footing that the case of Vickers⁽⁴⁾ had been rightly decided.

36. Clearly this is difficult ground. On that judges and jurists alike are at one.

37. In DPP v. Lynch⁽⁶⁾ Lord Simon of Glaisdale said :

A principal difficulty in this branch of the law is the chaotic terminology, whether in judgments, academic writings or statutes.

38. Lord Simon's comment will serve well as a preface to what must be said concerning the point at issue in the present case.

39. Although the mens rea in murder was widely and variously canvassed, the judges in Hyam⁽³⁾ did not consider, and were not asked to consider, whether a result foreseen as possible would suffice to constitute malice aforethought.

40. Since, however, such eminent judicial authorities can be found in contention over a point of such fundamental concern in the criminal law as the status of grievous bodily harm in relation to malice aforethought, I will take it that the present point, which has received no direct consideration at the highest level in the English courts, is one upon which we would be wise to receive whatever help we may, not only from judicial dicta but also from the observations of academic writers, in deciding whether or not the view taken of this matter in the Australian courts is the correct one.

41. With that said, however, I should add that in so far as they considered the matter at all, it would appear that the judges in the House of Lords in Hyam's⁽³⁾ case accepted probability or likelihood as the proper test.

42. The direction of the trial judge, Ackner, J., was to the effect that when Mrs. Hyam poured petrol through her neighbour's letterbox and then set the house on fire - the death of two small children resulting from her act - the jury should only convict her of murder if they were satisfied that she had foreseen death or grievous bodily harm to someone within the house as "highly probable". As to this, Archbold (40th Edition) at p.950 says :

"It seems reasonably clear from the majority of their Lordships opinions that the inclusion of the word 'highly' before 'probable' was unnecessary."

43. At all events, nobody, neither counsel nor the learned judges, suggested in that case that the test of foresight of possibility might be the correct test.

44. It may be said that the argument concerning "possible" as against "probable" when it reaches the hands of the academic writers is occasionally carried by them to philosophical depths so profound as to exclude the common daylight by which the courts of law must conduct their business. (In this connection see "The Mathematics of Proof" by Professor Williams a formidable and closely reasoned critique appearing in two parts in the Criminal Law Review for 1979 at pages 297 and 340.) No doubt it is to such depths that the roots of meaning must necessarily draw the inquiring mind at its most acute and scholarly and in the end the discourse of the courts is likely to benefit from the refinement of concepts. Meanwhile, however, there is some immediate help deriving from the academic debate upon the case law which will assist in a common sense approach to these terms.

45. The difficulty, of course, arises from the fact that the terms "probable" and "possible" when variously used may tend to encroach upon each other's territory. Mathematically regarded there is, no doubt, a degree of probability to every possibility. But it would surely be preferable, at least, when treating of mens rea in homicide, if the usage of the courts were to settle upon "probable" as a term denoting something which is "more likely than not" to occur whereas the term "possible" would be taken to apply to an event less likely than not to occur.

46. In Fallon's Crown Court Practice at page 250, the learned author is dealing with recklessness and foresight of consequences. He considers the degree of risk which has to be foreseen in crime and he says :

For the purposes of malice aforethought, it must be established that the defendant knew or foresaw that there was a probability or a likelihood of the risk eventuating.

47. For this he is relying upon Article 224, paragraph (b) of Stephen's Digest of the Criminal Law and on DPP v. Smith⁽⁵⁾ (cited supra.). These were prominent among the authorities being considered by the House of Lords in Hyam.⁽³⁾ Fallon then points out that malice aforethought is an ingredient special to murder and that it is not helpful to consider the meaning of malice in such enactments as the Offences against the Person Act of 1861, section 23 or, generally, in dealing with the mental elements of other crimes. He adds, in relation to murder, (p.251) :

"In no case does it seem that a jury has been directed that foresight of mere possibility suffices."

For him, therefore, recklessness in murder implies foresight of probability.

48. Archbold (40th Edition) citing Hyam⁽³⁾ (at p.958) says :

"'Recklessly' in certain dicta and according to some writers appears to be regarded as almost equivalent to 'intent' ........... The better view seems to be that whereas 'intent' requires a desire for consequences or foresight of probable consequences, 'reckless' only requires foresight of possible consequences coupled with an unreasonable willingness to risk them."

49. Shortly thereafter, he quotes the definition of recklessness proposed by the Law Commission (Law Comm. No. 89) which is in the following terms :

(1) The standard test of recklessness as to result is -

Did the person whose conduct is in issue foresee that his conduct might produce the result and, if so, was it unreasonable for him to take the risk of producing it?

(2) The standard test of recklessness as to circumstances is -

Did the person whose conduct is in issue realize that the circumstances might exist and, if so, was it unreasonable for him to take the risk of their existence? (emphasis added.)

50. Archbold also says, however, at page 958, that where a statute provides that an act will be criminal if done recklessly "it will seldom if ever be necessary to direct the jury that 'intent' includes 'foresight of probable consequences', because the latter will be sufficiently covered by 'recklessly'." There seems to be a contradiction here. If ''reckless" only requires foresight of "possible" consequences, it is difficult to see how foresight of "probable" consequences can also be covered by the same term if it be conceded that the latter term is used to denote a more likely-than-not occurrence and therefore one which obliges a greater reach of prosecution labours into the factual field of proof.

51. It may be, however, that what is intended is that foresight of "possible consequences" is to be equated in blame-worthiness with the foresight of "probable consequences" when the result which is envisaged as possible is accompanied by an unreasonable willingness to take the risk. Archbold appears to regard the proposed definition of recklessness by the Law Commission as satisfactory and he adds that it would seem to accord with some of the reported cases.

52. Dealing with this very matter, Professor Glanville Williams in the 2nd edition of his Criminal Law (The General Part) says at page 53 :

"Recklessness as to consequence occurs when the actor does not desire the consequence, but foresees the possibility and consciously take the risk. ......... For many, if not most, legal purposes recklessness is classed with intention. It is like intention in that the consequence is foreseen, but the difference is that whereas in intention the consequence is desired, or is foreseen as a certainty, in recklessness it is foreseen as possible or probable but not desired."

53. At page 59 he says :

"Consequences may range in every degree from the remote and unexpected, through the reasonably possible, the likely or probable, to the inevitable. ........... Recklessness occurs where the consequence is foreseen not as morally or substantially certain but only as 'probable' or 'likely', or perhaps merely 'possible'."

54. He cites the opinion of Criminal Law Commissioners of 1833 regarding the act of a man who selects one pistol from a number of pistols, only one of which is known to be loaded and he says:

"Superficially one might think that the law ought to declare how many unloaded pistols to the single loaded one make a killing merely 'possible' and how many make it 'probable' or 'likely'. The authorities furnish no guidance on this, and do not indicate whether foresight of possibility is enough to constitute recklessness."

55. He then quotes the words of the Commissioners who said that the probability of a fatal result would be diminished accordingly as the number of pistols increased. He did not regard the increase in number as having a significant effect upon the issue of the act because :

"still there would be a wilful risking of life attended with a fatal result ........."

56. Professor Williams notes that "probable" in this passage from the Commissioners report means what is usually called "possible". He continues (p.60):

"The opinion of the Commissioners may be accepted, for a person is not generally at liberty to bring another causelessly even within slight danger of death. However, this does not mean that foresight of bare possibility is in every case tantamount to recklessness."

57. He then introduces a distinction which may be of cardinal importance on this issue. He suggests that the case in which such foresight will amount to recklessness may be distinguished from the case in which it does not by reference to the degree of social utility, or the lack thereof, which can be discerned in the act which causes damage. On page 62, he says :

"The conclusion is that knowledge of bare possibility is sufficient to convict of recklessness if the conduct has no social utility, but that the slightest social utility of the conduct will introduce an enquiry into the degree of probability of harm and a balancing of this hazard against its social utility. If this is the law, it would be useless to define probability in mathematical terms, because the degree of probability that is to constitute recklessness must vary in each instance with the magnitude of the harm foreseen and the degree of utility of the conduct."

58. At page 63, he says :

''Degrees of possibility or probability, in the circumstances that come before the courts, are almost incommunicable, except in rough terms. ......... The finding of recklessness is easiest where the defendant was bent upon wrongdoing, and pursued his aim regardless of an obvious risk; such a defendant can be accounted reckless because he was not entitled, for the sake of his unlawful ends, to inflict any foreseen risk upon others. His plea that he thought the risk a small one will not avail him, because he was not entitled to bring others even into small danger for an unlawful purpose of his own."

59. It must be said that none of the passages cited from Glanville Williams are related directly to the crime of murder. On the other hand, it is evident that the opinions expressed are not intended to be restricted to any one crime or species of crimes.

60. At page 246 of Fallon (op. cit.), it is said that murder based, as it is, on malice aforethought, can be committed recklessly on the basis of foresight of probability .........".

61. In Hyam⁽³⁾, Lord Hailsham struck off in a somewhat different direction to that taken by the other judges. He returned a negative answer to the question posed for consideration by the Court of Appeal viz. : whether knowledge of the likelihood of harm is sufficient to show malice aforethought. In his view, intention was the important ingredient and foresight of consequences was not to be equated with intention. He settled upon a different test of intention : did the defendant know that by his act he was exposing the victim to a risk of really serious bodily injury? This is interpreted by Smith & Hogan as a clear statement that deliberate risk taking is equivalent to recklessness (op. cit. page 286). The risk must, of course, be unjustifiable or - in the language of Glanville Williams (page 53) - without any social utility. Smith & Hogan follow Glanville Williams in this and add that the test for recklessness is an objective one and that the opinion of the defendant is irrelevant, presumably both as to the social utility of the act and the probability of the result; but to this I must return.

62. Since it is clear enough that we are in the realm of what is arguable, it might be said to be arguable that, since recklessness involves an intentional act in the face of a perceived risk, the more grave are the possible results of that act the wider should stretch the net to catch the conscience of the actor. Is there anything repugnant to the moral judgment in demanding that any person who foresee a substantial possibility of grave harm in his intended act should be fixed with the necessary degree of malice when death results if it was clearly unreasonable for him to take the risk?

63. A good guide to a safe passage through these reefs and shoals of meaning is provided by the suggested test to be found at page 958, paragraph 1443C in Archbold in the passage already cited where he suggests that the better view seems to be that foresight of possible consequences coupled with an unreasonable willingness to risk them is sufficient to constitute that recklessness which is nowadays regarded as being almost equivalent to positive intent. It will, I think, be clear, adopting that principle, that the test of what is reasonable will not be the subjective test of what the accused believed to be reasonable but what was reasonable by the standard of the reasonable man.

64. The report of the Royal Commission on Capital Punishment (Cmd. 8932) in its fifth proposition as to what constitutes mens rea in murder says :

"It is murder if one person kills another by an intentional act which he knows to be likely to kill or to cause grievous bodily harm and may be either recklessly indifferent as to the results of his act or may even desire that no harm should be caused by it."

65. In his chapter on murder and manslaughter, Fallon remarks that the mental element so defined has caused problems, especially as it is no longer proper to say when addressing a jury that a man is presumed to have intended the natural consequences of his act. At page 308, he says :

"Foresight of consequences is, therefore, an essential feature of malice aforethought. .............. Malice aforethought is, however, a wider concept than intention. It includes a certain degree of magnitude of foresight accompanying a voluntary (intentional) act whether the defendant was recklessly indifferent to the consequences arising from his act or whether he actually desired the consequences not to eventuate."

66. He appears to take the view that the result of Hyam⁽³⁾ is that foresight of likelihood of grave bodily injury coupled with recklessness as to consequences is a sufficient mens rea in murder. It is evident that even putting the matter as high as that, he is, nevertheless, moved to question whether it should not go higher still and is inclined to approve of the criticism of this paragraph in the Royal Commission Report advanced in Kenny's Outlines of Criminal Law (15th Edition) where that learned author suggests that it may be impolitic to treat that class of intention as amounting to murderous malice. Fallon goes on in fairness, however, to note that Professor Smith, in a brief commentary in the 1975 Criminal Law Review at page 702, regards the decision in Hyam⁽³⁾ as establishing that either positive intention or else recklessness as to the particular harm prohibited by the offence is a sufficient mens rea for murder. He notes also that Professor Glanville Williams was of the same opinion in an article in the New Law Journal (126 NLJ 660) where he said:

"..........Murder can be committed by a certain type of recklessness."

67. It will be readily seen that there are high opinions in some condition of disarray on this very fundamental question. Admittedly the paragraph in the Royal Commission's Report, cited above, combines probability with recklessness as constituting mens rea and this is also the view taken by Fallon. Archbold and Smith & Hogan regard recklessness as constituted by foresight of possible harm but they also adhere to probability in relation to malice aforethought. It would seem to follow that for both of these authorities recklessness is not a sufficient mens rea in murder. It is not clear why Smith & Hogan take this view. For Archbold the reason appears to be related to the distinction, which next falls to be considered, between crimes of specific or ulterior and those of basic intention.

68. These are the terms employed by Lord Simon of Glaisdale in Lynch v. DPP for Northern Ireland^(6a) and in Morgan⁽⁷⁾. They have since come in for criticism. In Lynch,⁽⁶⁾ Lord Simon identified assault as a crime of basic intent and he said (page 33) :

"The actus reus is the wounding; and the prosecution must prove a corresponding mens rea - namely, that the accused foresaw the wounding as a likely consequence of his act. But this crime" - i.e. wounding with intent to cause grievous bodily harm - "is defined in such a way that the prosecution must in addition prove that the accused foresaw that the victim would, as a result of that act, probably be wounded in such a way as to result in serious injury to him."

69. Archbold (page 952) regards this as a lucid definition of a crime of specific intent but goes on to suggest that Lord Simon departed from it in Majewski⁽⁸⁾ (infra) in which case, moreover, Lord Simon appears to draw a distinction between "specific" and "ulterior" intent the latter being as he puts it merely "one type of specific intent".

70. In DPP v. Morgan⁽⁷⁾ (supra) at page 152, Lord Simon, some six weeks later, gives assault as an example of a crime of basic intent in that it is an offence in which the "mens rea (did) not extend beyond the act and its consequences, however remote, as defined in the actus reus."

71. In DPP v. Majewski⁽⁸⁾, lord Elwyn-Jones, L.C., (at page 267) adopted this definition for the purposes of the case before him in which the principal point being considered was the effect of self-intoxication upon the act of a person who was charged with assault. The question of intoxication is of no relevance to present concerns. What is of interest is the divergence of views which have subsequently been expressed concerning this definition of a crime of basic intent given by Lord Simon in Morgan⁽⁷⁾.

72. This distinction between crimes of basic intent and crimes of ulterior or specific intent has been much canvassed of recent years in the courts and by the academic writers. The editors of Smith & Hogan point out at page 56 in the 4th Edition that the term specific intent must be taken with some caution because :

"It is variously used to mean

(i) whatever intention has to be proved to establish guilt of the particular crime before the court;

(ii) a 'direct' as distinct from an 'oblique' intention; or

(iii) an intention ulterior to the actus reus; or

(iv) a crime where D may successfully plead lack of the prescribed mens rea notwithstanding the fact that he relies on evidence that he was intoxicated at the time."

73. Shortly thereafter, citing the case of Belfon⁽⁹⁾, the editors point out that upon a charge of wounding with intent to cause grievous bodily harm, proof that D was reckless whether he caused grievous bodily harm will not suffice. The learned editors add

"Yet, paradoxically, if death resulted from the wound, D's recklessness would probably be enough to found liability for murder."

And immediately thereafter the following general definition of mens rea is proposed :

"Intention or recklessness with respect to all the consequences and circumstances of the accused's act (or the state of affairs) which constitute the actus reus, together with any ulterior intent which the definition of the crime requires."

74. This opinion is, to some extent, echoed in the words of Lord Elwyn-Jones, L.C., in Majewski⁽⁸⁾ where, at page 270, having concluded that self-induced intoxication itself constituted the recklessness necessary to support a charge of assault, that being a crime of basic intent, went on to say :

"By allowing himself to get drunk and thereby putting himself in such a condition as to be no longer amenable to the laws commands, a man shows such re regardlessness as to amount to mens rea for the purpose of all ordinary crimes. (emphasis added)

75. This I take to be an opinion at large upon the topic of recklessness irrespective of whether the crime be one of basic or of specific intent. The distinction, however, persists and continues to attract controversy.

76. Smith & Hogan (page 186) having pointed out how important the nature of specific intent may be in relation to a defence of voluntary self-intoxication go on to say (in relation to the distinction between specific and basic intent):

"A careful scrutiny of the authorities, particularly Majewski itself, fails to reveal any consistent principle."

77. The only importance of this distinction to the present case lies in the suggestion (Archbold page 973-4) that it is only in offences of "basic intent" that recklessness is a sufficient mens rea. If that be right and if murder is a crime of specific intent then recklessness would not constitute malice aforethought. Archbold's comment is, however, a gloss on the words of the Lord Chancellor which were directed specifically to the situation of an accused who pleaded that he was too drunk to form the special intent described in the definition of the offence. There does not appear to be any case which says in so many words that "recklessness" as a concept is incompatible with a crime requiring specific intent.

78. Setting aside for the moment the distinction between what is "possible" and what is "probable", it must surely be the case that whether an act is seen by the doer as one which may possibly cause grievous bodily harm, or whether it is seen by him as likely or very likely to cause such harm, it is in either case an act which can perfectly well he associated with a cast of mind which is reckless of that result. The doer, to whatever degree of possibility or probability he foresees the result, "recks not that it should come about. This opinion of Archbold - and the same opinion to be found in Fallon (page 247) - cannot, I think, be supported on any logical ground.

79. Apart from that, there is still some doubt whether murder is to be regarded as a crime of specific or of basic intent. Smith & Hogan (page 186) say that murder is "conspicuously" one of the latter kind. The authors note that Lord Simon, in Majewski,⁽⁸⁾ introduced a further refinement into the argument by suggesting that it is the purposive element which distinguishes the two types of offence - i.e. specific and basic - and they argue that although Lord Simon regarded rape as a crime of basic intent, it is one which requires a purposive element whereas, it is said, murder, unlike rape, need not (page 186-7).

80. Archbold (page 973) notes that the Lord Chancellor in Morgan⁽⁷⁾ accepted Lord Simon's definition, in the same case, of a crime of basic intent and went on to list the crimes, in addition to rape, in respect of which it would be no excuse in law that the accused had knowingly and willingly deprived himself of the ability to exercise self-control by the use of drink or drugs. Murder does not appear in that list. Archbold remarks that the definition of crimes of "basic intent" accepted by the Lord Chancellor would seem to include murder and also causing grievous bodily harm with intent to cause grievous bodily harm, although it is apparent that the Lord Chancellor did not intend to include those crimes in his list.

81. Professor Glanville Williams appears to agree. Writing in the New Law Journal Vol. 126 at page 660, he comments on Lord Simon's definition. He argues that on this definition an offence of wounding with intent is a crime of basic intent since, in Lord Simon's words, "the mens rea does not extend beyond the act and its consequences, however remote, as defined in the actus reus." Glanville Williams adds that the same would be true of murder.

82. Fallon, however, (page 243) rejects this criticism pointing out that Lord Simon, who regards murder as a crime of specific intent, had not said : "An actus reus included a consequence, however remote, as defined in the actus reus," That is so; but it does not dispose of the criticism. Since either one of the two different degrees of intent will sustain a murder charge, where the intent is only to cause grievous bodily harm the mens rea stops there but the result of the act exceeds it. Looked at in isolation from the salutary rule whereby the courts will not allow a man to say he only intended grievous harm, death can be said to be a consequence more remote than that intended.

83. The difficulty arising out of the use of the terms "basic" and "specific" is, with respect, enhanced by the language employed by Lord Simon in a passage which appears on pages 152-153 in the Criminal Appeal Report and which is strongly relied on by Mr. Chandler in the present case. At page 152 dealing with a crime of basic intent (assault), he says :

"The prosecution must prove that the accused foresaw that his act would probably cause another person to have apprehension of immediate and unlawful violence or would possibly have that consequence, such being the purpose of the act, or that he was reckless as to whether or not his act caused such apprehension."

At page 153 he turns to consider a crime of "ulterior" intent (wounding with intent) and he says that the prosecution "must show that the accused foresaw that serious physical injury would probably be a consequence of his act, or would possibly be so, that being a purpose of his act." (added emphasis)

84. In both of those passages "possibly" appears as a viable alternative to "probably" and one must ask why, if that is a proper equation in relation to both types of crime, the further alternative of recklessness should not be sufficient mens rea for one of specific intent also.

85. Smith & Hogan (4th Edition, page 286) considers the test of intention to cause death or grievous bodily harm proposed by Lord Hailsham in Hyam^(3a) viz. : whether there is an intention "wilfully to expose a victim to the serious risk of death or really serious injury." and the editors go on to say :

"But whether a risk is a risk depends on how probable the consequence is. It might be thought, however, that there would be 'a serious risk' of a consequence occurring even if it was something less than 'highly probable'."

86. They go on to consider the case of the man who sets fire to a house thinking the chances are one hundred to one against anyone being inside it. Since such an eventuality cannot be seen as probable, the question is posed: would the risk thus taken, nevertheless, be regarded as a "serious" risk of death? They add :

"Arguably, because the consequence is so grave and the risk completely unjustifiable, this is 'a serious risk' ".

87. Although immediately thereafter the learned editors conclude that whereas even the slightest risk of inflicting serious bodily harm where the act has no social utility may make a man guilty of an offence under section 20 of the Offences Against the Person Act (i.e. assault), it will not be enough to sustain a murder charge because the bodily harm was not "probable". In other words the more grave the consequences of an act and therefore the more obvious its lack of social utility the higher must go the level of foresight. The logic of this is by no means obvious in view of what has been said immediately before this conclusion. Possibly it is intended to reflect not the gravity of the consequences to the victim but the gravity of the penalty faced by the accused.

88. What is notable, however, is that the learned editors in these passages advert to the possible link between the social utility of an act in relation to the seriousness of the risk which it occasions. This is very much the same as the opinion expressed by Professor Williams (page 60 op. cit.) to which I have earlier referred.

89. Contrasting the illustration of the pistol chosen from among a number of pistols with the situation of a person driving a motor car, Professor Williams points out that everyone who drives a car knows that a possible consequence is that he will kill a pedestrian. Nevertheless, he is not, simply by driving a motor car, to be considered reckless. The difference between the two situations consists in the social utility of the latter and the total lack thereof in respect of the pistol user. He adds:

"The difference is not in the degree of danger, for it may be statistically less dangerous to select one pistol from a million (one only being loaded) and aim at a man than to drive from London to Edinburgh."

The difference, that is to say, lies in the want of justification for the act.

90. The foregoing excursion through some of the authorities leads me to the conclusion that, although the better view would seem to be that, in England, at least, the foresight test is related to probability and not bare possibility, the point has not yet been settled because the question of recklessness in relation to murder is not yet unequivocally decided. This is so because the term "reckless" itself has been variously understood as involving either foresight of probable or else of possible consequences.

91. Assuming that recklessness is equally available in crimes of specific as well as of basic intent, a final question arises : what is the proper test thereof? Archbold (page 940), says that the test is purely subjective but no reason is given for that conclusion. To the contrary, both Smith & Hogan (page 53) and Fallon (page 250) emphatically state that the test is objective. The former writers put it this way :

"A person who acts recklessly is, then, taking a deliberate risk; and the word connotes that the risk is an unjustifiable one. .......... Whether the risk is justifiable depends on the social value of the activity involved, as well as on the probability of the occurrence of the foreseen evil. It is an objective question - that is, it is a question to be answered by the jury and D's opinion is irrelevant. ................ It follows that it is impossible to say in general term that recklessness requires foresight of probability, or that foresight of mere possibility is enough. If the act is one with no social utility (for example a game of Russian roulette) the merest possibility is enough. If the act has high social utility, foresight of probability may be required."

92. In the same vein Fallon (page 250) :

"Neither criminal nor civil liability arises merely because a risk is foreseen. The magnitude of the risk of the result eventuating may vary from a remote possibility to near certainty, and every risk is run in a certain factual setting. The running of the foreseen risk is objectively judged having regard to the magnitude of the risk in the circumstances.

A jury may infer that a defendant knew of or foresaw the risk from the magnitude of the risk in the circumstances, but unless a jury is directed that before a defendant can be found guilty, they must be sure that he did know or did foresee the risk, the test is not subjective."

93. This latter (and somewhat obscure) sentence is then explained by a distinction: the magnitude of the risk is to be judged objectively: but the question: did he foresee the result? is answered subjectively by reference to the actual state of the accused's mind.

94. It is some measure, of the lingering confusion surrounding the term "reckless" that in the present case it is Mr. Young, who asks us to disapprove the language used by the judge and not Mr. Chandler who seeks to uphold it, who cited to us the Australian textbook entitled Criminal Law by Professor Howard. Mr. Young was prepared to concede that if the view (cited above) expressed by that learned author at page 56 is correct, his argument must fail.

95. Mr. Chandler did not resort to Professor Howard and a closer scrutiny of the text reveals, I think, the reason why. Although it is clear that at page 56, Professor Howard equates reckless killing with foresight that one's actions may cause the death of another with the decision to take that risk', it is evident that throughout this section, which deals with recklessness as to the causing of death, he regards the word may and the word likely as denoting a similar degree of foresight. He is thus in conflict with those English authorities who regard recklessness as constituted by foresight of the mere possibility of the harmful result and, since he considers recklessness to be in certain circumstances evidence of a guilty mind sufficient to support a charge of murder, it would seem to follow that he agrees with those who hold to probability in the proof of malice aforethought. In common with most of the other writers, he distinguishes between recklessness and positive intent or negligence. But then he says (page 52 3rd Edition) :

"In Victoria, South Australia, New South Wales and Tasmania, it is murder for D to kill V by deliberately and unjustifiably undertaking a course of action which he foresees may cause someone's death, even if he does not want to kill anyone. In New South Wales and Tasmania this rule is enacted by statue. The Tasmanian version, which is limited to the case where D intends to harm V is set out above."

96. When, however, we consult section 157(1)(b) of the Tasmanian Code to which he refers, we find it there laid down that it is murder to kill "with an intention to cause to any person, whether the person killed or not, bodily harm which the offender knew to be likely to cause death in the circumstances, although he had no wish to cause death." Later, (page 54) he says:

"Although a different view has been expressed, the law probably is that, subject to the one exception of wilful blindness which is mentioned in the next section, foresight of the mere possibility of causing death cannot amount to recklessness."

97. The "different view" to which he refers is that of Glanville Williams (p.60 The General Part) to which I have referred above.

98. Howard cites the Australian case of Hallett and the Queen⁽¹⁰⁾ to show that the rule, as formulated in the Australian Courts, seems to favour foresight of probability or likelihood over foresight of possibility as constituting the type of malice aforethought sometimes known as recklessness.

99. Reverting to the example of the one loaded pistol among a number of unloaded pistols (the example posed by the English Criminal Law Commissioners of 1833), he demurs to the view expressed by Professor Glanville Williams viz. that this example accepts that foresight of mere possibility can constitute recklessness. Then, having come down upon the side of likelihood or probability, he says (page 55) :

"It therfore seems preferable to say that the Commissioner's example discloses recklessness only if the number of pistols was so low that the likelihood of death was so high as to render the taking of the risk reckless. This still leaves open the question how high the likelihood has to be. Except, perhaps, in such cases as the one envisaged by the Criminal Law Commissioners, it is impracticable to make a mathematical approach to this problem. It would be going too far even to say that the causing of death must be foreseen as more probable than not, for a substantial danger to life may be created even though that danger may be demonstrably less than 50% probable. An example would be if the number of guns in the Commissioner's case were three. One can only say that the risk must, in the view of the jury, be substantial."

100. At this point the tangle in terminology becomes more apparent even as it grows more impenetrable. I cannot think, with due respect. that discourse on this topic is much assisted by the use of the notion of probability in this way. The jury is surely best instructed to adhere to the common sense usage which would make "probable" mean "more probable than not.

101. It is interesting that Professor Howard immediately thereafter, dealing with the question of wilful blindness, allows that proof of the foresight of bare possibility will be enough to sustain a murder charge if it be also shown that the defendant deliberately took no steps to ascertain the magnitude of the risk. He gives the example of somebody setting fire to a house knowing that someone may be within but not troubling to find out if anyone is, in fact, inside. These circumstances he regards as constituting murder by recklessness; a view which seems to support the idea that the gravity of the risk renders possible harm a sufficient content for the necessary foresight.

102. Finally, in dealing (page 56) with recklessness as the infliction of grievous bodily harm, he says :

"It is murder for D to kill V by unjustifiably undertaking a course of action which he foresees may cause grievous bodily harm to V or some other persons."

103. In a footnote he appears to regard the English case of Hyam⁽³⁾ as supporting this proposition but as we have seen the majority in that case favoured, at the least, the probability rule while the minority would go further and say that there must be an intention to do an act likely to endanger life.

104. From all the foregoing, although it would be rash to say that any such clear principle is demonstrated, I think it is, nevertheless, arguable that there is authority to support the following principle. Malice aforethought in murder is constituted by (a) a positive and direct intent to kill, or (b) the taking of a deliberate and unjustifiable risk when the one who takes it foresees that death or really serious bodily injury is a substantial possibility. A risk is unjustifiable when objectively judged, it was unreasonable to take it in view of its magnitude and want of social utility. But the final question is still subjective: did the accused foresee the result as a serious, or substantial possibility? As against the somewhat confusing and elastic use of terms which I have been thus far concerned with, there is available recent Australian authority which is unequivocally behind this test of mens rea in murder. It is a very considerable authority. It carries the weight of the fully considered opinions of five judges in the highest Australian Appellate Court with Barwick, C.J., presiding.

105. In Johns v. The Queen,⁽¹⁾ the appellant Johns appealed from the majority decision of the Court of Criminal Appeal of New South Wales dismissing his appeal against a conviction for murder. It was a "common design'' case. The appellant had driven W to a rendezvous with the latter's co-accused D. The plan was to waylay and rob M. The applicant was aware that W carried an automatic pistol which he expected to be loaded on this occasion. On the way to the rendezvous which was some distance short of the place where the ambush was to take place, W told the applicant that M was always armed and that he, W, would not stand any nonsense. He added that M was likewise a person who would not stand for any "mocking round if it came to a showdown. M was waylaid and in the course of a struggle, he was shot and killed by W. The robbery was unsuccessful. W and D left the scene in another car, returned to where the applicant was and told him that things had gone wrong. The applicant learned next morning of M's death when he read about it in a newspaper.

106. He was convicted as an accessory before the fact upon the murder charge. The trial judge directed the jury that they should find murder in all the accused if they were satisfied that the parties, that is, the applicant, W and D, must have had in mind the contingency that for the purpose of carrying out their joint enterprise, or attempting to carry it out, the firearm carried by W might be discharged and kill somebody. He told them 'that if a party to the enterprise "must have been aware of such a possibility or contingency then he is responsible for the death" whether or not he was present at the time of the killing. He also told them that they would be entitled to hold that all who had taken part in the joint enterprise of robbery with a lethal weapon must be taken to have had in mind the "possibility" that it would be put to a lethal use.

107. The argument upon the appeal centered upon two points. Firstly, it was argued for the applicant that an accessory before the fact could not be convicted merely on the basis of his participation in the joint enterprise. We are not concerned with that submission which was rejected by the High Court.

108. Barwick, C.J., pointed out that the charge war a charge of murder at common law. He considered, therefore, that the decisions in R. v. Eli Guay and Christina Guay⁽¹¹⁾ and Brennan v. The King ⁽¹²⁾ were of no assistance to the applicant because the circumstances in each of those cases - cases of homicide - were governed by the relevant provisions of, respectively, the Canadian Criminal Code and the Criminal Code of Western Australia. Each of those codes provides in terms that culpability for participation in a common purpose requires it to be shown that the criminal result was a probable consequence of the prosecution of such purpose. He was satisfied that the judge's direction had been correct.

109. Stephen, J., dealt with the point in greater detail. He, in common with all the other judges, rejected the argument that a different degree of foresight should be required of an accessory at the fact (i.e. a principal in the second degree) from that required of an accessory before the fact. That by itself could have resulted in the dismissal of the appeal since it appear that counsel for the appellant, while urging this distinction, conceded that an accessory at the fact would be guilty if he foresaw the possibility that the gun might be used by his armed accomplice.

110. Stephen, J., in relation to the purported distinction between accessories before and at the fact, adopted the words of Glanville Williams (The General Part 2nd Edition, page 404):

"The distinction between principals in the first and in the second degree, and between principals and accessories generally has no legal importance."

Then he went on to consider the major point.

111. At page 170, he begins by remarking that the endeavour to distinguish between the culpability of accessories and principals in this way on the basis of foresight of probability as distinguished from possibility seems ''singularly inappropriate". Then he says :

"There will usually be a variety of possible responses to the criminal act. With each of these contingencies the criminals will have to reckon, if they are at all to plan their future action. What they conceive of as contingent reactions to each possible response will have, interposed between these reactions and the planned crime, at least one and perhaps a whole sequence of spontaneous and relatively unpredictable exerts .............. in such a speculative area, it would be remarkable were the accessory's liability for the other crime to depend upon the jury assessing in terms of 'more probable than not' the degree of probability or improbability which the accessory attached to the happening of the particular reaction by the principal offender which in fact occurred, itself dependent upon the intervening uncertain responses of victim or third parties."

112. A little later he says :

"Another and perhaps more substantial objection to this suggested criterion of probability lies in the standard of blame worthiness and responsibility which it presupposes. If applied, it would mean that an accessory before the fact to, say, armed robbery, who well knows that the robber is armed with a deadly weapon and is ready to use it on his victim if the need arises, will bear no criminal responsibility for the killing which in fact ensues so long as his state of mind was that, on balance, he thought it rather less likely than not that the occasion for the killing would arise. Yet his complicity seems clear enough: the killing was within the contemplation of the parties, who contemplated 'a substantial risk' that the killing would occur, Howard, Criminal Law 3rd Edition 1977 page 276."

113. Later he notes the fact that, as Lord Reid remarked in The Wagon Mound (No. 2)⁽¹³⁾, "probable" may bear a variety of meanings and that it can be used variously to cover the idea "more probable than not" but may also shade out to the notion of "a bare possibility". He takes the view that Sir James Stephen in following Sir Michael Foster's use of the term "probable" (Crown Cases 3rd Edition 1809) is necessarily relating that term to the illustrations given by Foster to show an accessory's equal culpability with his principal. These illustrations, Stephen, J., suggests, show that both Foster and Stephen were using the term "probable" in an extended sense and were not restricting it to the notion "more probable than not."

114. The decision in Johns⁽¹⁾ was applied shortly afterwards in Miller v. The Queen⁽¹⁴⁾.

115. Here at last we have clear, compelling and direct authority from Australia favouring the "foresight of possibility" test, and nothing equally compelling or direct from the Privy Council or the House of Lords to set against it. The point was not squarely confronted by the courts in Hyam⁽³⁾, Morgan⁽⁷⁾ or Majewski⁽⁸⁾.

116. It may be that the trial judge's reference to "highly probable" in Hyam⁽³⁾ (a phrase which Lord Cross thought too favourable to the accused, and which in commentaries since has been said to be an unnecessary addition to the term "probable") was intended to mean "more probable than not" and that, if they had been asked to consider the matter, or if it had been necessary to their decision, their Lordships in the House of Lords might have come to a conclusion similar to that arrived at by the Australian Appellate Court. That is, of course, speculation. However, I do not think that it would be a disservice to justice or that it would, in any way, infringe the legitimate interests of any defendant upon a criminal charge for the alternative to direct intention to be framed in terms of "possible" as distinct from "probable" foresight of consequences.

117. For the comfort of trial judges, however, I would stress the importance of the decision of the English Court of Appeal in Beer⁽¹⁵⁾. In that case Lawton, J., pointed out that the trial judge had misapplied the decision in Hyam⁽³⁾ by directing the jury in terms (following the line of Lord Hailsham which was not adopted by any of the other judges in that case) that a murderous intent would be established if it were shown that the accused had intended to expose the victim to the risk of death or really serious bodily harm. He said that Hyam⁽³⁾ was a very unusual case and that there were few murder cases where the facts bore any resemblance at all to those in that case. He adopted the words of Viscount Dilhorne who, in Hyam⁽³⁾, had said, in effect, that in the vast majority of murder cases it was sufficient to leave to the jury the question: was it proved that the accused had intended to kill or to do grievous bodily harm? It would greatly simplify the tasks of both judge and jury in Hong Kong if this advice were taken to heart and applied in all but those exceptional cases where a closet analysis of the contents of the accused's mind becomes necessary.

118. It would have been preferable if in the present case the judge had told the jury that the possibility he was leaving to them had to be a substantial possibility but the circumstances were such that the omission to do so cannot have prejudiced the appellant.

119. For the reasons given, I do not think there was any material misdirection and I would dismiss this appeal.

Li, J.A.:

120. I have the benefit of reading the judgment of my lord the vice-president with whom I respectfully agree. For the purpose of the present appeal, however, I will be content to consider only the facts in evidence in totality.

121. The defence was the 3 appellants went, armed themselves with knives, to the home of the victim to collect a debt. The rhetorical question is: Who requires a knife to collect a debt? Further if the appellants brought knives for such a purpose is it not a natural inference they intended to use them should the victim refused to accede to their demand?

122. Throughout his direction to the jury when the learned trial judge used such words as "may", "might", "possible" or "possibility" - words which are subject matter of counsel's criticism - he qualified them with the words "contemplated" and "expected". The word "contemplated' according the Concise Oxford dictionary, means "view mentally; expect; intend; and purpose".

123. In my opinion the judge virtually directed the jury that if they came to the conclusion that each appellant intended, expected, or had the purpose that the appellant's co-accused would resort to the use of lethal weapons to inflict grevious bodily harm then they would convict the appellant of murder.

124. Even if I am wrong I am further of the opinion that had the judge directed the jury with the formula "highly probable", "probably" or "likely" the jury would inevitably have come to the same verdict. In short the proviso should apply.

125. For these reasons I also dismiss the appeal.

(1)    (1980) 54 A.L.J.R. 166

(2)    (1979) H.K.L.R. 214

(3)    (1974) 59 Cr. App. R. 91

(3a)    (1974) 59 Cr. App. R. at 104

(4)    (1957) 2 Q.B. 664

(5)    (1960) 44 Cr. App. R. 261

(6)    (1975) 61 Cr. App. R. 6 at p.25

(7)    (1975) 61 Cr. App. R. 136

(8)    (1976) 62 Cr. App. R. 262

(9)    (1976) 3 All E.R. 46

(10)    (1969) S.A.S.R. 141

(11)    (1957) O.R. 120

(12)    (1936) 55 Crim. L.R. 253

(13)    (1967) 1 A.C. 617

(14)    (1980) 55 A.L.J.R. 23

(15)  (1976) 63 Cr. App. R. 222

Silk, J.A. :

126. I also have had the opportunity of reading in draft the judgment of McMullin V.-P. which sets out in detail the facts of the case.

127. It further deals in so admirable and comprehensive a fashion with the interesting and important point of law raised by this appeal that there is little I can usefully add. I am in respectful agreement with his conclusions but in the light of the importance of the point would shortly give my reasons for that agreement.

128. On the facts if the jury believed the evidence of Madam Lam then they would have been fully entitled to find that the three appellants came to the premises armed with knives; that they burst into those premises following upon the initial decoy knock by the third appellant; that two of them, identified by Madam Lam as the 1st appellant and one other who was not the third appellant, upon that entrance used those knives to inflict such violence upon the deceased as to cause his death.

129. There was before them the cautioned statements of the three appellants and the evidence of the injuries suffered by the first and second appellants. None of the applicants give evidence. It was open to the jury to reject the untested statements, which it is clear they did, and to find that the injuries occurred in the course of their attack upon the deceased who made a futile attempt to defend himself.

130. They were clearly and strongly warned as to the dangers, emerging from the evidence, of convicting on the wounding count. They must, as my Lord has said, have come to the conclusion that the appellants coming to the flat, armed as they were, not only contemplating violence but were also prepared to be a party to all forms of violence offered to its inhabitants. They were fully aware that Madam Lam was unable to say which of the appellants it was who struck the actual blow which caused her injury.

131. The jury were entitled to reach the verdicts they did.

132. If the use by the trial judge of expressions less positive than "probable" was wrong and therefore a misdirection, and I do not think this to be so, there was in my judgment no miscarriage of justice resulting from any such misdirection and I would have applied the proviso.

133. On the complex issue of law, being in agreement with my Lord that there is no decision of the Privy Council or the House of Lords directly in point - though in Hyam ⁽¹⁾, a case very much peculiar to its own facts, as was Morgan ⁽²⁾, the majority of the House appear to favour "probable" or the "more likely than not" test while the minority would go further - I am content to adopt the reasoning in Johns v. The Queen ⁽³⁾. The High Court of Australia was dealing with the issue of an "accessory before the fact".

134. I was there held:-

"(1)     An accessory before the fact can be convicted by reason of his participation in a common design or joint enterprise on the basis of the same degree of responsibility as other participants, notwithstanding that he does not actively participate in the actual on the spot execution of the enterprise, to which he has agreed or encouraged. He is then liable for all that occurs in the course of such execution, if this be of a kind which fairly falls within the ambit or scope of such enterprise or design, while it is enough that the contingencies within the contemplation of the parties should be possible, as distinct from being probable consequences". (emphasis supplied).

135. Barwick C.J. thought the point as to "possible" "probable" was of sufficient general public importance to merit a final pronouncement by the High Court of Australia.

136. Stephen J. reviewed the authorities and cited the speech of Lord Reid in The Wagon Mound ⁽⁴⁾ where he said of "probable":

"It is used with various shades of meaning. Sometimes it appears to mean more probable than not, sometimes it appears to include events likely but not very likely to occur, sometimes it has a still wider meaning and refers to events the chance of which is anything (sic) more than a bare possibility."

137. He agreed with the joint judgment of the three other members of the Court, Mason, Murphy and Wilson JJ., as to the criminal liability of an accessory before the fact.

138. At page 173 their Lordships had this to say:-

"The problem here is one of expressing the degree of connexion between the common purpose and the act constituting the offence charged which is required to involve the accessory and the principal in the second degree in complicity. The applicant referred to some cases in which reference has been made to the offence charged as a "probable" consequence of the common purpose and sought to gain support from them. Two comments should be made about these cases. One is that none of them lends any countenance to the notion that the doctrine differs in its application to an accessory before the fact as compared with a principal in the second degree."

139. I would interpolate here that the doctrine does not differ in its application as between those classes of person instanced by their Lordships and the appellants here.

140. They went on:-

"The second comment is that the observations in the two cases on which the applicant principally relies relate, not to the common law, but to the interpretation of one only of two relevant provisions in statutory criminal codes. It should be noted, as will be mentioned later, that there is support for the view that the relevant code provisions reflect the common law."

141. We are not here construing statutory codes and I share the views expressed by my Lord that the authorities on what is or is not the common law are at best uncertain in this realm.

142. Their Lordships went on to consider a series of cases and having decided that those authorities supported the decision of Street C.J. in the Court of Criminal Appeal (New South Wales), which decision was for consideration by the High Court of Australia, and which is, in effect, set out in the headnote to Johns ⁽³⁾ which I have earlier quoted, concluded at p.175:-

"The narrow test of criminal liability proposed by the applicant is plainly unacceptable for the reason that it stakes everything on the probability or improbability of an act, admittedly contemplated, occurring. Suppose a plan made by A, the principal offender, and B, the accessory before the fact, to rob premises, according to which A is to carry out the robbery. It is agreed that A will carry revolver and use it to overcome resistance in the unlikely event that the premises are attended, previous surveillance having established that the premises are invariably unattended at the time when the robbery is to be carried out. As it happens, a security officer is in attendance when A enters the premises and is shot by A. It would make nonsense to say that B is not guilty merely because it was an unlikely or improbable contingency that the premises would be attended at the time of the robbery, when we know that B assented to the shooting in the event that occurred."

143. They went on to find that the original jury could have concluded on the evidence that the common purpose involved resorting to violence of the kind that occurred should the occasion to use it arise and that the violence contemplated amounted to grievous bodily harm or homicide.

144. So too here. The trial judge was entitled to say of the third appellant:-

"If you have not any doubt, members of the jury, that the 3rd accused went to those premises contemplating that a knife or knives might be used by one of his co-accused on one of the occupants, if either of the accused's demands, whatever they might be, were not acceded to or if the occupants reacted, predictably by resorting to self defence, then you will find him guilty of murder even though he did not strike a single blow at the deceased." (emphasis supplied).

145. Nor was he wrong to use the expressions "the possibility" and "reasonably possible" where he did.

146. As my Lord has trenchantly stated what the trial court and the jury are concerned with is the question: was there proof that the accused, at the time he did the act, had the intention either to kill or to do grievous bodily harm to the victim and, I would add, ancillary to that in a case such as this: what was the nature of the common design encompassing all the accused.

147. In the event I too would dismiss the appeal.

(1)    [1975] A.C. 55

(2)    [1975] 61 Cr.App.R. 152

(3)    [1980] 54 A.L.J.R. 166

(4)    [1967] A.C. 617

Representation:

Christopher Young, Esq., (D.L.A.) for Appellants.

J.P. Chandler, Esq., Crown Counsel, for Crown/Respondent.