Chan Cheong Hing v. The Queen
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CACC000811/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 811 OF 1973 -----------------
----------------- Coram: Huggins, McMullin & Leonard, JJ. Date of Judgment: 27th December 1973. ----------------- JUDGMENT ----------------- Huggins, J.: 1. This is an application for leave to appeal against a conviction on a charge of murder. Counsel who appears for the Applicant has informed us that he can find no ground upon which he can base an argument that the verdict was wrong. We have, however, considered this case with some care because of an anxiety which some of us had about the verdict. 2. The case arose out of a domestic dispute between husband and wife. There was a history of domestic trouble and on the day in question there was clearly an argument between the two parties. The Applicant admitted in a statement to the police that he had struck his wife a number of times and had killed her, and his defence at the trial was provocation. The medical evidence showed that the wife had been hit at least 16 times and the factors relied upon for the olea of provocation were particularly that the wife had at least threatened (as was said in the statement) or had actually tried (as was said in the evidence of the Applicant) to destroy the husband's ancestral tablets. It should be mentioned that the husband is a Chiu Chow and there was evidence that the ancestral tablets are of particular importance to a Chiu Chow family. The Applicant also alleged that his wife had pinched him and that she had grabbed his testicles and twisted them. There was medical evidence to support the first of those allegations, evidence of a mark on his thigh, but there was no medical evidence to support the second allegation. 3. Clearly there was evidence upon which the jury could bring in a verdict of not guilty of murder but guilty of manslaughter on the basis of provocation. The members of this Court, having read the file and not having seen the witnesses, would not have been at all surprised if the jury had returned such a verdict. As we read the summing-up of the learned judge this was the verdict which he anticipated, but it is not the verdict which was returned. We find ourselves unable to say that the jury returned a wrong verdict because we do not know which of the factors relied upon for the plea of provocation (if any of them) were believed by the jury. If they disbelieved the whole of the Applicant's story then a verdict of guilty of murder was inevitable. 4. This is not a case where, in our view, it would be appropriate to rely in any way on s.83 of the Criminal Procedure Ordinance. We cannot say that this verdict was unsafe or unsatisfactory. On a reading of the file we think it is a surprising verdict but we cannot say anything more than that. If we were to use s.83 in a case of this kind it would completely destroy the whole foundation of trial by jury. 5. In our view the application must be dismissed. 27th December 1973. Representation: |