Yeung Pui Yan v. The Queen
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IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 136 OF 1973 -------------------- BETWEEN
-------------------- Coram : Huggins, McMullin & Pickering, JJ. ------------------------ J U D G M E N T ------------------------ Huggins, J.: 1. This is an appeal against a conviction for murder. The Deceased and the Appellant were prisoners in one of Her Majesty’s prisons. There were two eye-witnesses to the incident which occurred. One of them, LI Kwok-wa, said that he saw two persons fighting (the Appellant and the Deceased) but he did not see how the Deceased was stabbed by the Appellant. NG Sik-lun, another prisoner, said that he actually saw the Appellant draw a triangular file from his pocket and stab the Deceased. There was medical evidence of one fatal wound in the abdomen and of other wounds of no great significance. 2. The Appellant made a statement to the police, which was in these terms:
At the trial there was some discussion about the precise translation of this document and evidence was given that, according to the Chinese original, the triangular file was picked up in the dining hall. That was the evidence for prosecution. 3. The Appellant gave evidence and he described how he had borrowed the currency of the prison, namely cigarettes, from the Deceased, how he had been unable to repay and the debt had gradually risen by accumulation of interest. He said that the Deceased then demanded the repayment of the cigarettes. The Appellant had apparently been acting as what was described as the “lieutenant” of the Deceased in the prison and had been keeping for the Deceased various weapons. He said that when he told the Deceased he could not repay the debt the Deceased asked for all the weapons back. He indicated that one of them was in a drain pipe outside the dining hall. They went together towards the drain pipe and just as the Deceased was about to pick the weapon from the pipe the Appellant says he pushed him aside, having come to regret that he had ever pointed out where the weapon was. He said that he himself then picked up the weapon and that the Deceased then attacked him and tried to recover the weapon: the Deceased also shouted “embrace him” and the Appellant says that he was afraid that he was going to be attacked by others also. He admits that he then wounded the Deceased but says he does not know exactly how that came about. There was an obvious conflict between his evidence and his statement to the police, but in his evidence he admitted that parts of the statement were not true. 4. The learned judge directed the jury on the defence of self-defence and of provocation, but the first of the Additional Grounds of Appeal which has been argued before us is that the learned judge wrongly failed to direct the jury that a verdict of manslaughter was open to them on the basis that the Appellant had used a greater degree of force than was necessary and that there was an excess of self-defence. With respect, we think that this is a misunderstanding of the true legal position. At one time it was thought that the law of England and of Hong Kong might be the same as that in Australia, but it is now clearly established that where the defence of self-defence is raised either it is available so as to excuse the accused person or it is not available and has no effect: where it is not available because of the use of excessive violence in self-defence (provocation also hewing been negatived) then the question is simply “What was the intention with which the fatal blow was struck?” As was said Cascoe (1970) 54Cr. App. R. 40l, there may be cases where a verdict of manslaughter is open in such circumstances, but, equally, it is apparent from the judgment in that case that there may be cases where the verdict in not open at all. The court said:
In our view those words apply equally in the present case. 5. The second of the Additional Grounds of Appeal is that the learned judge omitted to put adequately to the jury the Appellant’s case. The learned judge drew attention to the discrepancy between the statement made by the Appellant to the police and his evidence in the trial. What is apparently complained of is that he did not point out to the jury that in his evidence at the trial the Appellant expressly said that part of his cautioned statement was untrue. The learned judge certainly did not point this out, but in our view there was no obligation upon him to do so. The defence of the Appellant was put fairly before the jury and we see no substance in this ground of appeal. 6. The original Ground filed by the Appellant himself was “that he was falsely accused and wrongly convicted”. Counsel has argued that on the basis that it meant that there was insufficient evidence to prove the case beyond reasonable doubt. His main contention appears to be that the evidence of NG Sik-lun was totally incredible because he said this sharp triangular file, about seven inches in length, came out of the Appellant's pocket. The suggestion appears to be that that was a physical impossibility and that it was altogether unlikely since the persons were inside the prison. It was demonstrated beyond the peradventure of a doubt at the trial that the weapon could be hidden in the trouser pocket, and the circumstances show also that there was nothing inherently improbable about the Appellant's having the triangular file, since, on his own story, he had previously hidden it in the drain pipe. 7. In our view there was evidence which, if believed (as it was), would justify the jury in returning a verdict of Guilty of murder. This application must be dismissed. 6th April .1973. |