Chan Kwai-tim v. The Queen

CACC000838/1981

[Misdirection of law as to manslaughter.]

BETWEEN:

Coram: Roberts, C. J. , McMullin, V. P. & Li, J. A.

Date: 12 March 1982

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J U D G M E N T

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Roberts, C. J.-

Admissions by appellant

1. The appellant, CHAN Kwai - tim, a man of 44, surrendered himself to f the Homantin Police Station on the 24th November, 1980. He spoke there to Sergeant LAM Kam-wah, informing him that he had come to surrender himself for killing someone in Tokwawan. The sergeant cautioned him, whereupon the appellant said -

"I do not know how to write. My writing is not good. In about October, 1971 I killed by younger sister, a daughter of my paternal uncle. Because two persons had a fight, and she took a knife to hit me.  I warded her off with the knife. I used my hand to grab neck and pulled her up. Then she was dead."

2. This statement was recorded by the sergeant and signed  the appellant.

3. Later that same day, he was formally cautioned again by Inspector LEE Ka-chiu and a further statement was taken from him, the important parts of which read as follows -

"CHAN Yuet-wan later scolded me again and wanted me to return rent to her and wanted me to give her three months rent as compensation for her to move out. I said she was heartless. She then kicked up a row and once again called me 'God damned' and 'drop-dead'. She also said 'At first you allow me to stay and then want me to move out.'  I said 'You can go'. She flew into a rage and went into the kitchen to (get) a knife. About 4 to 5 o'clock I awoke from sleep after going off-duty and had a quarrel with her in the sitting room. I said it was time to go to work and she then said (one character added) (signed by CHAN Kwai - tim) I wanted the quarrel and also said I should not tell her to stop She went into the kitchen to place (get) knife. I was afraid of her and retreated into my room. she chased up and used the knife to chop me. I used my hand to ward off the knife and pressed the knife onto her neck. There was a little blood. She raised hand to hit me. I stretched my hand across, grabbed her and lifted her and grabbed her neck and lifted her up from the ground. I heard her saying 'Uncle Tim, I am dying.' I released my hand and she lay down without any breath "

The summing-up

4. The appellant gave no evidence. His defence therefore had to be derived solely from the statements which he made to the police.

5. As the judge rightly commented, in his summing-up, the defendant had admitted being responsible for the death of his cousin, so that the only issues which the jury had to decide were those of self-defence and of provocation.

6. There was no criticism of the manner in which the judge directed the jury on the law governing murder or self-defence.

7. The sole ground of appeal was that, by virtue of a passage in his summing-up, the judge may well have confused the jury as to the law governing provocation.

8. The judge correctly directed the jury that, if there is provocation, this will reduce murder to manslaughter and that the burden lies on the prosecution to disprove provocation beyond all reasonable doubt.

9. There then occurs the passage to which objection has been taken -

"Well, then, if you find provocation, as I say, the count of murder will be reduced to one of manslaughter.

What does 'manslaughter' mean? Manslaughter is where it is proved beyond all reasonable doubt that this defendant intentionally did an act, which was unlawful and dangerous and that act inadvertently caused the death of the deceased. It is not necessary to prove that the defendant knew that the act was unlawful or dangerous, but it must have been an intentional and deliberate act by this defendant towards the deceased. It can be defined as 'the unlawful killing of another with intent to cause some bodily injury less than serious bodily injury. '"

10. What the judge has done is to insert into a summing-up which was dealing with the reduction of murder to manslaughter by reason of provocation (which is commonly described as 'voluntary manslaughter') a direction which is appropriate only to cases in which the possibility of involuntary 'manslaughter' has arisen.

11. On the facts of this case, there could have been no question of involuntary manslaughter. Both the evidence of the pathologist and that of the appellant himself in his cautioned statement exclude this possibility, which was not referred to at any other time during the trial or in the summing-up.

Was there a misdirection?

12. It was argued that by reason of the reference of the judge to the law governing involuntary manslaughter, the jury may have concluded that it was not open to them to reduce the charge from murder to manslaughter if they thought that the unlawful killing of the deceased had been done with intent to cause her serious bodily injury.

13. On the facts put before them, they could surely only have concluded that serious bodily injury was intended. Indeed, the judge had already suggested to them that "one would have thought from the injuries that he (the accused) must obviously have intended to cause her serious bodily harm."

14. This amounts to a misdirection, since the defence of provocation may succeed, even if the intention of the defendant is to inflict serious bodily injury on the victim.

15. It is true that, at a later point in his summing-up, the judge directs the jury impeccably as to the law governing provocation. But we cannot discount the possibility that there may have remained in the jury's mind that passage which suggests that manslaughter by reason of provocation is only open to a jury if less than serious bodily injury was intended by the accused.

Effect of misdirection

16. Counsel for the appellant conceded that, on any reading of the evidence, if the jury had rejected the possibility of self-defence as they did and were entitled to do, the only correct verdict would have been one of manslaughter, even if the jury had been properly directed. We agree with this view.

17. There remains, however, the question of whether or not we should apply the proviso, a course which is normally taken only if the appellate court is satisfied that he jury, if properly directed, must necessarily have come to the same conclusion as the improperly directed jury did. To answer this, it is necessary to consider the facts which were put before the jury.

18. The evidence of the pathologist is that the injuries suffered by the deceased consisted of the following -

19. As the judge rightly observed, in his summing-up, the test to be applied, where the defence of provocation is in issue, is whether the provocation was sufficient to make a reasonable man act as the defendant did towards the deceased.

20. In essence, the appellant's story, as contained in his statement to the police, was that the provocation offered to him by the deceased consisted of the following acts -

21. There is no suggestion in his statement that he suffered any injury as a result of her attack upon him.

22. Would any reasonable jury have come to the conclusion that this was a sufficient provocation to make a reasonable person, having the sex and age and other characteristics of the defendant, react as he did?

23. It must be borne in mind that the attack which he launched upon the victim consisted not only of heavy blows with a steel pipe, but also of her near strangulation and the vicious wounding of her throat by two deep cuts.

24. Perhaps it could be said that the verbal abuse, though it does not seem to have been very extreme, and the threatening gesture which she made with the knife, may have been sufficient to make a reasonable man strike back. Conceivably, it might have led a reasonable jury to the conclusion that a reasonable man might have retaliated by striking her with the steel pipe.

25. But can it really be said that a reasonable man would thereafter have gone on to strangle the victim almost to death, and that, having tied her hands together, he would then have cut her throat twice, thereby causing her to bleed to death.

26. We cannot conceive that any reasonable jury, faced with these facts, would have reached any other conclusion than that the defence of provocation must be rejected.

27. We have thus decided that, although there was a significant misdirection to the jury, the latter would inevitably, if properly directed, have come to the same conclusion and convicted the appellant of murder.

28. The appeal against conviction fails.

Representation:

K. Bokhary, Miss Bina Chainrai (D.L.A.) for Appellant.

K.B. Egan, Crown Counsel, for Respondent