Liu Tim Lok and Another v. The Queen

CACC000820/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 820 OF 1975

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Coram: Briggs, C.J., Huggins & Pickering, JJ.

Date of Judgment: 18 December, 1975.

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JUDGMENT

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1. The appellants were convicted of murder and sentenced to death. This is an appeal against their conviction.

2. All that need be said of the facts is that the appellants took part in what could be called an affray and inflicted wounds on the deceased using wooden poles which resulted in his death. Three grounds of appeal were argued by Miss Leong, who appeared on behalf of the appellants. It is only necessary for us to deal with one of these three grounds in this judgment.

3. Miss Leong argued that the trial judge withdrew the alternative verdict of manslaughter from the jury. She drew the attention of the court to a passage which appears at the very end of the summing-up. This reads as follows:-

"To convict any of these accused of murder you will have to be satisfied beyond reasonable doubt either that he inflicted the fatal blow intending to cause death or grievous bodily harm, or that although he didn't inflict the fatal blow he was a party to a common design to inflict death or grievous bodily harm on LIU Kam-yau, and if in relation to any of the accused you remain in doubt about those matters so that you cannot conscientiously say 'I am quite satisfied that he either inflicted the fatal blow or was at the time when it was inflicted a party to a common design to cause death or grievous bodily harm' then you should acquit and that is your duty. You cannot convict any of these accused unless you are thoroughly satisfied that he either inflicted the fatal blow intending to cause death or grievous bodily harm or was a party at the time that it was inflicted to the killing or the doing of grievous bodily harm to the deceased."

4. It is the last sentence to which objection was taken. Miss Leong urged that by this sentence the jury were directed that the only offence which they need consider was the offence of murder and that the sentence can only mean that manslaughter was not left for the consideration of the jury.

5. We think that the jury might have taken that view though earlier in his summing-up the trial judge had briefly stated that it was open to the jury to return a verdict of manslaughter if they took a certain view of the facts. However, we do not think that that reference can be said to correct any wrong impression given by the passage in the summing-up which is quoted above. It is also important to note that this passage appears at the very end of the summing-up and would have been fresh in the jury's minds when they commenced their deliberations.

6. For this reason, we think that the conviction of murder of the two appellants is unsafe. We therefore allow their appeals and substitute a verdict of guilty of manslaughter for each of the appellants.

7. The appellants are brothers, the first appellant being 17 and the second appellant being 19 years of age.

8. The facts establish that there was some sort of a struggle in which blows were exchanged on each side. Indeed, the second appellant himself received an injury during the course of the fracas. It is also clear from the evidence that the incident occurred as a result of a row between the two sides to the quarrel but there is no evidence that the victim's death occurred as a result of a preconceived plan.

9. Each appellant has a clear record and each gave himself up to the police immediately after the incident. We think that in all the circumstances the proper sentence is a term of imprisonment of five years for the first appellant and six years for the second appellant. The only reason we differentiate between the two appellants is the youth of the first appellant.

Representation:

Miss J. Leong (Helen A. Lo & Co.) for both appellants.

Bellanto for crown.