Chan Kai-lun v. The Queen

CACC000597/1970

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 597 OF 1970

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

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

Coram: Full Court (Mills-Owens, Huggins and McMullin, JJ.)

Date of Judgment: -8 MARCH 1971

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

JUDGMENT

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

1. The appellant, who was the lover of the deceased girl, made several voluntary statements which amounted to confessions to premeditated murder. At the trial, for the first time, he put forward the story of a quarrel in which the deceased had slapped his face. The quarrel became a fight in which blows were exchanged. She kicked him and threw a stick or mallet which struck him on the knee hurting an old injury and then she took up a small knife and they struggled together for possession of it. In the course of this struggle they fell and she received an accidental wound on her neck. There was much blood and she was shouting. He told her to stop but she went on and he took up a file and stabbed her wildly on the back.

2. We accept the principle that the verdict of the jury must be the basis upon which sentence is to be passed. In the present case the verdict brought in by the jury, on the charge of murder, was manslaughter. This could only have been on a finding that there had been provocation or alternatively that the Crown had failed to disprove it. The passage in the reasons for sentence to which our attention has been drawn is as follows:

"The jury have been very merciful to you in this case which is a very serious case indeed. I am not here to lecture or to preach, but you have shown yourself to be a person who paid no proper regard to the value of human life."

Counsel has argued that this discloses that the judge overlooked the factual implications of the jury's verdict.

3. There have been several reported cases in recent years dealing with the duty of a judge to "honour the verdict of the jury" including a decision of this court in 1967 (Kwok Yau Shing v. R., (1968) H.K.L.R.) The effect of these decisions has been conveniently and, we believe, accurately summarised in an article which appears at p.80 of the Criminal Law Review for 1970 (1) At page 82 the author says:-

"In the face of this problem the Court of Appeal has developed the principle that where the factual implication of the jury's verdict is clear, the sentencer is bound to accept it and a sentence which is excessive in the light of the facts implied on the verdict will be reduced."

Further on he says:

"This principle can only apply, however, where the factual implication of the jury's verdict is clear; where ....... the factual implication is ambiguous, the Court has held that the sentencer should not attempt to follow the logical processes of the jury, but may come to his own independent determination of the relevant facts."

4. Manslaughter is a crime which can vary very widely in gravity from case to case. In R. v. Jama (1968) 52 Cr.App.R. 498 Widgery L.J., in delivering the judgment of the Court of Appeal, reducing a sentence of 10 years for manslaughter to 3 years, said (p.502):

"A sentence of 10 years on a conviction of manslaughter is appropriate for what is properly called a bad case, it is appropriate for a case which is very nearly murder."

Whatever the logical processes of the jury may have been in determining the issue as to provocation we see no reason to say that the judge in passing sentence was other than fully justified in describing the case as a very serious one and in passing sentence in accordance with that view.

Representation: