Poon Wing-hung v. The Queen

CACC000881/1979

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Coram: Leonard, J. A., Addison and Garcia, JJ.

Date of Judgment: 5th May, 1980.

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JUDGMENT

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Leonard, J.A.:

1. The deceased in this case died on the 4th of March 1979 in a closed room at 1201, Star House, Tsim Sha Tsui.

2. The appellant had been engaged to work in a firm which carried on business there and had been dismissed from his employment. He had been reinstated and given a temporary job to enable him to look for another and he had been replaced in his former job by the deceased.

3. The death of the deceased took place behind locked doors, when only he and the appellant were together in this room. There was evidence of some unpleasantness between them and from the appearance of the room and the wounds inflicted on the deceased all the appearances of a murderous attack on the deceased were present.

4. The appellant when he finally opened the door of the room concocted a story that both he and the deceased had been the victims of robbers. This story was speedily disproved. The falsity of the story and the condition of the room naturally aroused suspicion. There was some evidence that the appellant had on the afternoon prior to the morning in question brought a hammer to the premises. When this was coupled with evidence available from the furniture in the room and from the body of the deceased a strong case to show that that hammer had been used in an assault on the deceased was made out. The deceased however died as a result of one of three stab wounds. There was also found close to the body a fruit knife which it would appear had been on the desk in the room immediately prior to his death.

5. The appellant gave evidence in the court below and his evidence was somewhat garbled. From a close examination of it however it appeared as possible to the trial judge that he was advancing what are commonly mistermed "defences" those of self-defence, of accident and of provocation.

6. The additional grounds of appeal filed are commendably brief. They suggest that the trial judge erred when he directed the jury that if they rejected the appellant's version of the fight that would exclude the defences of accident, self-defence and provocation.

7. A careful examination of the summing-up indicates that the trial judge used the expression that "if you reject the evidence of the appellant" some seven times in all. Before doing so he had clearly indicated to the jury the duties of the Crown in respect of all these defences stating unequivocally that it was for the Crown to show the absence of self-defence; for the Crown to show that the death might not have arisen by accident and for the Crown to show to negative the possibility of provocation. No fault can be found with his general instructions as to the onus or standard of proof. Thus at an early stage he instructed the jury that if they were to convict of murder they would have to be satisfied beyond reasonable doubt that the appellant attacked the deceased intending to kill him or cause him serious harm and that the deceased died as a result of that attack. He said

"You will have to be satisfied that the death did not occur accidentally and that it did not occur when the deceased was acting in self-defence and that there was no provocation. If the possibility of provocation exists, then what would be otherwise murder will be the lesser offence of manslaughter. So if there is no intention, although there was an unlawful killing, it would be manslaughter."

He uses the same or a similar formula when discussing accident and self-defence. The question is whether the jury could have been left under a wrong impression by his use of such words as

"if you completely reject the evidence of the accused as to the fight"

into the belief that the onus had some way shifted to the appellant. We have carefully considered each of the passages in itself and in the light of the summing-up as a whole and have come to the conclusion that there was no such possibility.

8. The first occasion upon which the trial judge uses the expression occurs at page 287, where, having explained to the jury that the submission of the Crown was that the jury should have no hesitation in dismissing the evidence of the appellant he goes on to the say:

"I intend now to look at the possibilities which you have to examine, and before so doing I will tell you that if you completely reject the evidence of the accused as to the fight, it will not be necessary for you to consider the possibility of accident, self-defence or provocation. Those matters are raised in his defence. They arise only upon the evidence which he has given. If you reject his evidence, then you will look to the facts which you are satisfied have been proved beyond reasonable doubt and you will make up your mind as to the inferences which you can draw therefrom."

This direction is balanced by a direction in the same paragraph at page 288

"You would return a verdict of guilty to the lesser offence of manslaughter if, and only if, you were satisfied beyond reasonable doubt that the proper and only inference to be drawn from the facts is that the accused attacked the deceased and the deceased died as a result of the attack, but you were not satisfied that the accused had the intention at the time of the attack to cause death or really serious harm."

9. The second occasion upon which the expression is used is at the bottom of page 288 where the trial judge says:

"To find him guilty of murder, you would have to be satisfied that his version was untrue as to the fight and must be rejected, and that the proper and only inference to be drawn from the facts was that he attacked the deceased intending to cause his death."

Later at page 289 he uses the expression for a third time where he says:

"The view you take of the evidence, as I have already indicated, is entirely a matter for you. You may come to the conclusion that the accused is unworthy of any belief and reject his version of the fight. If so, you would not be concerned further with the possibility of accident. The suggestions that the deceased died accidentally arise only upon the evidence given by the accused."

He goes on to balance this at page 291 with the following direction:

"You have got to determine whether the accused was saying it was accidental, or whether he was saying that he was so provoked by the deceased, by what the deceased had said and done, that he lost control of himself and stabbed him. You have got to bear in mind the possibility that he was saying that the stabbing may have been intentional and if it was, then it was done by him while he was defending himself."

Again, he qualifies his earlier direction at page 292 by saying:

"Now if you consider it possible, that is, if you are satisfied that it was so or you think it might have been so, that the accused caused the death of the deceased when he was doing what was reasonably necessary to defend himself from a hammer attack, and it was a hammer attack, according to him, undertaken by the deceased with the avowed intention of killing him, if you consider that he was doing what was reasonably necessary to defend himself, then you must return a verdict of not guilty of both murder and manslaughter."

The expression is used for the fourth time again at page 292 where the learned judge says:

"I tell you again with regard to self-defence, if you entirely reject the accused's version of the fight, then it will not be necessary for you to consider the possibility of self-defence further. That possibility, if it arises - and whether it does or not is a matter for you - arises upon the evidence of the accused."

The expression occurs twice at page 294 when he says:

"Again I will tell you in relation to self-defence, if you reject his version of the fight entirely, then there would be no issue of self-defence for you to consider."

Turning then to deal with provocation on the same page he says precisely the same thing:

"if you reject his version entirely, then there will be no issue of provocation for you to consider."

Later however he balances this direction with a further direction:

"I now tell you that if you consider there was a possibility that the accused was provoked - ...... if you consider there is a possibility that he was provoked and acted under that provocation, you will convict only of the lesser offence of manslaughter."

The same phrase occurs for the seventh time at page 295 where the trial judge says when speaking of the conduct imputed by the appellant to the deceased:

"If you find that it never occurred, if you reject the accused's version in that regard, then there would be no provocation and you would not need to consider this issue any further."

That again is balanced at page 296 of the record by his saying:

"Now I emphasize again at this stage that the onus remains upon the Crown to prove the absence of provocation beyond reasonable doubt."

The final occasion upon which the expression is used occurs at the very end of the summing-up when the trial judge while discussing the verdicts open to the jury had this to say:

"If you reject the accused's version entirely, you will return a verdict of guilty of murder or guilty of manslaughter or not guilty in accordance with the instructions which I have given to you."

This last sentence is at first sight difficult to understand. The only way in which sense can be given to it is by the insertion of a pause after the word "murder". The task the judge was engaged on at that stage was to give to the jury an indication of the verdicts open to them. We think this is the way in which that sentence must be understood.

10. Taking the summing-up as a whole and recollecting the care with which the trial judge explained from the outset and repeated that the onus remained on the Crown but that if the jury came to the conclusion that there was a possibility of the Crown having failed to prove the absence of accident or of self-defence or of provocation they would find accordingly we have come to the conclusion that while the use of the expression "if you reject the accused's version" may, taken in isolation, be open to some criticism we do not consider that as a whole it can have caused the jury in any way to misunderstand that the onus remained upon the Crown throughout. We therefore consider that this appeal must be dismissed.

Representation:

Patrick Yu and Patrick Chan (Y.T. Chan & Co.) for appellant.

Mr. B.M. Ryan, C.C. for Crown/respondent.