Chan Ka-shing v. The Queen
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CACC001122/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 1122 OF 1974 -----------------
Coram: Briggs, C.J., Huggins & McMullin, JJ. Date of Judgment: 25th April 1975. ----------------- JUDGMENT ----------------- 1. The appellant was found guilty of murder and sentenced to death. He appeals against his conviction. It is not necessary to set out the facts of the case. Various grounds of appeal were put forward but it is only necessary to deal with one: namely, that there was an inadequate direction to the jury as to the burden of proof on the issue of provocation. 2. Part of the case for the appellant in the court below was that he was provoked by the deceased and that the blow which caused the death of the deceased was provoked. The learned trial judge summed up this part of the defence in the following words:-
3. In view of the way the defence was presented, it was necessary in this case for the trial judge to address the jury on the question of provocation. Counsel for the appellant drew our attention to two cases, Prince(1) and McPherson(2). The headnote in the latter case reads as follows:-
4. In the present case, it was not clearly put to the jury that the burden of proof to show that there was no provocation remained with the prosecution throughout and that it was not for the appellant to prove that he was provoked. 5. In the event, and with considerable reluctance the appeal against conviction was allowed and a conviction of manslaughter was substituted therefor. The appellant was sentenced to ten years' imprisonment.
Representation: Sanguinetti & Bokhary (D.L.A.) assigned for appellant. Hanson, c.c. for Crown/Respondent. (1) 28 Cr. App.R. 60. (2) (1957) 41 Cr. App. R. 213. |
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