Lam Mui Yau v. The Queen
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CACC000821/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 821 OF 1975 -----------------
Coram: Briggs, C.J., Huggins & Pickering, JJ. Date of Judgment: 26th November, 1975. ----------------- JUDGMENT ----------------- Briggs, C.J.: This was a straight-forward case in which the appellant was indicted on two counts of murder. He did not give evidence, but it was contended on his behalf that the evidence for the Crown was unreliable in so far as it suggested an intent to kill or to do grievous bodily harm: it was never seriously disputed that the appellant had stabbed both the victim named in the indictment. The defences of self-defence and provocation were probably open to the defence on the strength of the cautioned statement and the jury were in fact directed thereon. The principal matter upon which a clear direction of the jury was required was the intent which constituted a necessary ingredient of the offences charged and the intent which would justify verdicts of not guilty of murder but guilty of manslaughter. 2. With all respect to the trial judge his summing-up was not as helpful as it might have been and it is not surprising that the jury returned to ask for a further direction on the very point which went to the root of the case. Even then the judge, having answered the question put to him in a few words, went on to repeat much of what had been so confusing in his previous charge. It is, as this court has indicated on more than one occasion, rarely if ever of assistance to a jury to mention to them terms such as "malice", "malice aforethought", "express malice", "expressed malice" and "implied malice", all of which the judge sought to explain to this jury. In the event the result was that counsel for the appellant had no difficulty in pointing to passages in both parts of the summing-up which, standing alone, were clearly wrong. To say
is not merely obscure but is positively misleading, because a "deliberately cruel act" may be done with an intent to do something less than grievous bodily harm. In the present case the wounds inflicted were such that no reasonably jury, once it had found that they were inflicted intentionally (and had rejected self-defence and provocation), could have gone on to find that those wounds were inflicted with an intent to do less than grievous bodily harm. This may have been in the judge's mind, but he should nevertheless have left the issue of the nature of the intent to the jury. Although one member of the court has had serious doubts we have come to the conclusion that when one reads the summing-up as a whole, the direction was sufficiently clear and that any misdirection there was was not such as to result in a miscarriage of justice. 3. A second point, which was raised by the court, related to the evidence of the victims' daughter. She was only nine years' of age and although she gave evidence on oath before the magistrate the trial judge thought it better that she should give her evidence before the jury unsworn. He rightly warned the jury that her evidence therefore required corroboration, but he told them that they might find corroboration in the appellant's cautioned statement because he there admitted "the stabbing". (In fact the statement showed that the appellant had admitted both stabbings). However, corroboration of evidence which is not in dispute is not enough: R. v. Salman(1). What required corroboration in the present case was that part of the girl's evidence from which it was possible to infer that the appellant stabbed intentionally and not in self-defence or as a result of provocation. Again one member of the court had serious doubts, but the conclusion we have reached is that there was corroborative evidence from the other witnesses and that no miscarriage of justice has occurred. 4. For these reasons the application is dmismissed.
Representation: Bunting (D.L.A.) for appellant. Amey for crown. (1) (1924) 18 Cr. App. R. 50. |