R. v. Chow Suk Sang

CACC000950/1982

IN THE COURT OF APPEAL

1982, No.950
(Criminal)

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Coram: Hon. Power, Ag. C.J., Litton, V.-P. & Mayo, J.A.

Dates of Hearing: 8 and 11 November 1996

Date of Delivery of Judgment: 28 November 1996

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The appellant was convicted of murder and forcible detention in the High Court on 10th September 1982. His appeal was dismissed by the Court of Appeal on 10th December 1982. On 27th October 1995, the Chief Secretary exercising the powers delegated to her by the Governor, referred the case of the appellant to the Court of Appeal for its further consideration pursuant to s.83P(1)(a) of the Criminal Procedure Ordinance (Cap. 221).

2. The original indictment contained two counts alleging that on 5th January 1982, the appellant and Chan Siu-ming ("Chan") had murdered Lai Tak-sum at Mui Tsz Lam, Ma On Shan, New Territories, and that on the same date and at the same location they had forcibly detained him against his will with intent to procure a ransom for his liberation.

3. The appellant and Chan were tried jointly before Bewley J. and a jury. Each pleaded not guilty to both counts on 25th August 1982. Each was represented by counsel and each had made cautioned statements. There was no challenge to the appellant's statements but Chan challenged the admissibility of his statements which were, after a six-day voir dire, excluded by the judge. The result was that the prosecution offered no further evidence against Chan and he was acquitted.

4. When the jury reassembled on 7th September 1982, Bewley J. told them that he had been informed by counsel that most of the evidence was agreed and that "at the present the defendant does not intend to give evidence". The trial took only four working days and resulted in a conviction on both counts.

5. The victim, a 14-year-old school boy, was kidnapped on the morning of 5th January 1982 by the appellant and Chan while on his way to school. He was driven by car to the Ma On Shan area and then taken to a hillside at Mui Tsz Lam where he was strangled to death. His body was then concealed.

6. The appellant on that evening telephoned the victim's father demanding a ransom of US$200,000. The appellant's father testified that he had at one time worked together with the appellant and had told the appellant in 1980 that he had a rich relative in the United States who was interested in investing in China. After they had ceased working together there were a number of seemingly coincidental meetings with the appellant in December 1981 and January 1982. In particular, a day before the kidnapping when the appellant, in the course of a seemingly chance meeting, had told him about another kidnapping involving a policeman and a relative who had solved it. He had recognized the appellant's voice when he made the telephone call demanding ransom, and the police were soon alerted, leading to the appellant's arrest the next day.

7. The appellant made eight cautioned statements in all. Seven of them were taken by Detective Inspector Ma Yun-hein and one by Detective Sergeant Kwok Pau-fuk. Initially the appellant admitted only that he had made the telephone call but in later statements he admitted that he and Chan had kidnapped the boy and driven him to a house in Shatin where he was to be detained. He said that on finding that the door of the house was locked, the boy was taken up the hill at the back of the house by Chan who then strangled him to death. He went on to say that the victim was undressed and buried; he spoke of the disposal of his clothes and school bag.

8. In the original appeal which was dismissed on 10th December 1982 it was argued that the trial judge when dealing with the appellant's final statement had directed the jury in a way which was illogical and prejudicial and had wrongly directed the jury as to the meaning of the term "reasonable doubt". The court rejected both submissions and dismissed the appeal.

9. The matter having been referred to this court on 27th October 1995 the appellant filed five grounds of appeal. The first alleged that

"(1) The conduct of the Appellant's Defence prior to and during his trial was seriously prejudiced by his legal advisers, resulting in a miscarriage of justice. The Director of Legal Aid assigned belatedly a barrister and a firm of solicitors to act for the Appellant. The acts and omissions of the Director of Legal Aid, the barrister and the firm of solicitors amounted to gross negligence, flagrant breaches of their professional duties to the Appellant and radical incompetence."

Eleven particulars of this misconduct was set out. In a lengthy affidavit in support of this ground the appellant stated that he had "always steadfastly insisted my innocence" and detailed the methods used by the police to trick him into making incriminating statements which had been "scripted by them". He stated also that "throughout the trial" his counsel "never explained to me what was happening, nor did he took (sic) any instructions from me." The other grounds alleged:

(2) A failure to give the jury a Turnbull warning;

(3) The judge had wrongly failed to exercise his discretion when refusing to sanction the withdrawal of the assigned barrister;

(4) Material evidence was not disclosed by the police to the defence at trial;

(5) The above matters cumulatively amounted to a denial of a fair trial.

10. Shortly before the matter was to be heard by this court, all of these grounds were abandoned. The appellant filed fresh grounds seeking to argue:

"(6) The learned trial judge erred in law in not leaving the alternative verdict of manslaughter to the jury.

(7) The learned trial judge erred in law in failing to direct the jury on joint enterprise and on the individual state of mind or intent of the Appellant in relation to the killing of the victim as opposed to that of the Second Defendant, Chan Siu Ming.

(8) The learned trial judge misdirected the jury on fact and made unwarranted comments in relation to the seventh cautioned statement (exhibit P60). (This ground is supported by five particulars)

(9) The learned trial judge misdirected the jury in law in that he did not put the Appellant's case in relation to the count of murder adequately to the jury, namely, that the act of D2 in killing the victim went completely beyond the common intent of the Appellant and D2 in kidnapping the victim and in frightening the victim not to tell anyone of the incident after his release by giving him a few punches, and by threatening him that he would be beaten again if he did not listen to them. In the premises, the summing-up was unbalanced."

11. As to Ground 8 we have examined each of the matters of which complaint is made and are satisfied, with one exception, that there is no weight in the submission that the trial judge misdirected the jury on fact and made unwarranted comments in relation to that cautioned statement.

12. The one matter as to which complaint can be made is the judge's observation:

"But as counsel has told you, it is not murder if he just stood by and watched the boy being killed, provided he did not intend it and was not providing support and encouragement. But if this is what in fact happened, then that is not consistent with what the defendant has said in his last statement. He would have observed the whole process of strangulation, and it also makes it extremely doubtful, you may think, that he had no intent to kill."

This matter was dealt with by the court in the first appeal in the following way:

"It may be said that Counsel makes a point of substance here. The language used by the Judge at that point does suggest that he was telling the jury that the allegation by the applicant that he was not a party to the killing was not consistent with what appeared in the applicant's final statement. Mr. Jennings for the Crown concedes that that was not correct, and that in fact the statement does leave open the possibility, even if it was not a very strong one, that the applicant had been overtaken by events which had got out of control and to which he was not a consenting party.

Nevertheless we cannot think that that misdirection can have had the effect of leaving the jury under the impression that they were compelled to regard the statement and the allegation of innocence as mutually inconsistent. The direction must be taken, like all such directions, in the context of the summing-up as a whole. The jury had been carefully instructed that standing by and mere observation would not be enough, and we think that in using the terms that he did, the Judge simply omitted something that must clearly have been in his mind, that is, that the statement contained an admission by the applicant that he had assaulted the boy. That assault, even on the applicant's statement, must have occurred a very brief time before the strangulation. Immediately prior to the passage of which complaint was made, the Judge said: 'But in this statement the defendant admits a much closer involvement with the boy. He admits threatening him and punching him which is consistent, as I said, with the medical evidence. He says he wanted to release the boy while Chan did not. Yet apparently he did nothing when Chan killed him. In other words he stood there doing nothing for at least one minute, may be longer. He says the next thing he saw was the boy on the ground with the blood in his mouth.'

These were the circumstances which were obviously in the Judge's mind when he referred to the inconsistency as he saw it, between the statement and the claim of innocent presence put forward by the applicant. The final phrase 'He would have observed the whole process of strangulation and it also makes it extremely doubtful you may think that he had no intent to kill' makes the whole purport of these directions clear. The observation of the process of strangulation taken with the fact the applicant had admitted assaulting the boy is there being put to the jury who are then told that those circumstances might leave them with no doubt that there had been an intent to kill."

13. That court was, in the outcome, satisfied that the direction was infelicitously phrased but that it did not make the conviction either unsafe or unsatisfactory. We respectfully agree.

14. Grounds 6, 7 and 8 which were argued together contain the thrust of the appeal.

15. The submissions thereon can be put, in short, in the following way. Before the appellant could be convicted of murder the jury would have to be satisfied that there was an intention common to both the appellant and Chan to kill or at least to cause really serious harm to the victim. This was essentially a jury matter. While the judge left the intention of the appellant to the jury, he failed to leave for their consideration whether Chan had such an intention. As the jury could only be satisfied on the murder count if they found that there was a common intention, this was a failure of a most serious kind which fatally flawed the conviction. This argument was developed by the further submission that had the judge left the intention of Chan to the jury then he would have had to go on and explain to them that if they were not satisfied that Chan intended to cause death or really serious harm they would have to consider whether he might have been doing no more than acting dangerously when trying to subdue and frighten the victim and, if satisfied that no more than that was proved, they should return a verdict of manslaughter.

16. To do justice to the arguments of Mr. Martin Lee Q.C. and Mr. McCoy, who appeared together with Mr. P.Y. Lo for the appellant, it is necessary to examine with care the approach taken by the judge in his summing-up. Initially he directed the jury that the facts were for them and that they must use their common-sense in their assessment thereof. He then gave them a proper direction as to the drawing of inferences. He referred to the onus and burden of proof and to the fact that the defendant gave no evidence. He then dealt with murder saying:

"Now murder is the unlawful killing of a person with intent to kill or to cause serious bodily harm. Here the killing was clearly unlawful. There was no legal justification for it. We are concerned only with the defendant's intention at the time of the killing and to what extent, if any, he participates in it."

It is to be noted that whilst he made no mention of the intention of Chan, he did ask the jury to consider the extent to which the appellant participated in the intent to kill. He went on:

"Now members of the jury, even though the defendant himself did not kill the boy, if he was present and had the necessary intent to kill, he is guilty. If for example, he watched for his companion in order to prevent surprise or was in such a situation as to be able readily to come to his assistance, the knowledge of which was calculated to give additional confidence to his companion, he was aiding and abetting the murder and was equally guilty; nor does the killing have to be premeditated in the sense that it was planned in advance.

You must consider what was in the defendant's mind at the time of the actual killing. This is the critical time. You can forget any question of intent to cause serious bodily harm in this case. If the boy was strangled by the other man, the defendant either intended the boy to die or he did not, and it is this question that you must concentrate on, members of the jury. In the former case, he is guilty of murder. In the latter, he is not guilty.

Now counsel for the Crown has addressed you on the crime of manslaughter, but I direct you that there is no question of manslaughter in this case. It is murder or nothing. The reason is this, the killing was not the result of the unlawful punching. It was the result of the other man's act of strangulation. Something has intervened, has come between the original unlawful act, that is the punching, and the cause of death, which was the strangulation.

This is so even though it might be said that the killing might never have happened but for the punching. In other words the killing is too remote from the punching and the defendant cannot be held responsible for what may have occurred indirectly as a result of his initial act. He cannot be said, in other words, to have caused the death." (Emphasis supplied.)

17. The focus clearly was upon the intent of the appellant. The judge having dealt with the definition of the offence of forcible detention turned to consider the evidence. He dealt with the evidence of the father and then referred to the statements made by the appellant.

18. It is of importance to look with care at what was said in these statements. On 6th January 1982 (Exh.53) the appellant told Inspector Ma that he knew nothing of the kidnapping and had only made the telephone call to the father. On 7th January (Exh.54) he admitted taking part in the kidnapping. As regards the events in Ma On Shan, he said:

"Then they (Chan and the victim) alighted from the vehicle first and walked up the hill from the nearby hill path. I drove the vehicle away and parked it in the vicinity. Then I went back and stood somewhere near the hill path and looked up the hill. I saw Chan Siu-ming on the slope of the hill knock Lai Tak-sum's head against the ground. Then he grabbed his neck. A short while later he was seen removing his clothes." (Emphasis supplied.)

Later in the statement he said:

"When I was half-way up the path, I found that he knocked his head violently and grabbed his neck pushing him onto the ground." (Emphasis supplied.)

He went on to say:

"At that time I saw Chan Siu-ming knock his head against a nearby object and at the same time grab his neck in his arm." (Exh.54) (Emphasis supplied.)

19. In the same statement he claimed that when Chan was removing the boy's clothes he returned to the car alone and drove away; later that afternoon he met Chan at a restaurant and then drove Chan and Chan's mother to the Housing Department at Homantin; in the car Chan told him that the boy "had been buried somewhere above the hill path". He said he did not understand what Chan meant by "buried" and was not sure where the body was buried: Chan merely said it was "at the position in the vicinity at the material time".

20. In the same statement he admitted that the boy had seemed to recognise him and asked if he was Uncle Sang.

21. On 8th January (Exh. 55) he said that he would take the police to the scene but that he did not know the exact burial location.

22. Later on that day (Exh.56) after the body had been discovered, the appellant, having led the police to the spot where it was buried, said:

"At that time he (Chan) was walking in front taking Lai Tak-sum with him. Firstly, he was seen put the schoolbag in the thicket of the staircases. At that time I parked the vehicle by myself. The two of them were out of my sight. After parking the vehicle, I followed the way and wanted to catch up with them. I vaguely saw them go into the wood. So I followed them via the wood where we had walked before. We were at a distance of about 15 yards, I thought that my duty at that time was to see if we were discovered by anyone whereas Ming Chai was responsible for taking the deceased up. Ming Chai then took the deceased to the place where the dead body of the deceased had been found at an earlier time. I saw him use the right arm to grab round the deceased's neck, pressing downwards with force exerted. After about three minutes, I stood in the thicket at a distance of about 20 feet below them. Later I saw Ming Chai remove his school blazer with great effort and at the same time loosen his necktie." (Emphasis supplied.)

Later again on that day, after the police had shown him a statement made by Chan, he said:

"He (Chan) said that I dragged Ah Sum along and walked into the wood of the hill while he remained in the vehicle to wait for me for ten-odd minutes. That is not the fact. Actually, it was I who stopped the vehicle and they alighted from the vehicle and went up the hill by taking the stairs. Then, I made a U turn and went on a farther place to park the vehicle. After that, I did go to the path of the hill to take a look before. I returned to my vehicle and drove away from Mui Tsz Lam to Kowloon. At that time, I believed that Sum Chai had already been taken up to the path of the hill by him, and before the incident I had never thought of that Sum Chai would be killed. Only after I made the telephone call and was consequently arrested by the police, it came into my mind that Sum Chai was on the path of the hill. The way that Chan Siu-ming acted might have hurt him, and not just to imprison him."

The appellant gave a fuller, and somewhat different, version in Exh.60, a statement taken on 11th January, in which he said:

"At that time, after boarding the car, he was told to bend his head down and not to say anything as we had to tour around with him once and had to ask him something and I drove the vehicle to a house at the end of Mui Tsz Lam Road in Shatin. That house was arranged by us earlier on for detaining him. Upon arrival, it was found that the door of the house was locked up at a certain time unknown. Therefore, he was taken to the back of the house. At that time, as there were dogs barking in the village, we were afraid that we might be discovered by people, Ming Chai then took him uphill from the back of the house. I at once drove the vehicle to a farther place for parking. After that, I went up the hill from the back of the house to look for him. When I went up the hill, I found that Ming Chai was grabbing round him beside at withered tree. At that time, I asked Ming Chai what to do. He said he didn't know. We said to the deceased, 'If I let you go back, can you promise not to tell your parents about today's matter?' Then, I punched him twice and threatened him that he would be beaten again if he spoke it out on return. After that, I said to Ming Chai to let it be as there was no other way. Ming Chai then said that what could be done if he spoke it out after he had been released. What should I do at that time if he was not released. Lai Tak-sum might be very frightened at that time and wanted to get up and Ming Chai grabbed round him tighter. At that time, I did not know what to do. When Ming Chai got his hands off, I saw Lai Tak-sum lie on the ground with blood at the corner of his mouth. I did not know whether he was dead or not at that time because I was very frightened. Then, Ming Chai told me to touch him. I found that he had no reaction at all. Ming Chai then told me to go down the hill to drive the car back to the round junction. After I had driven the vehicle back, I went up the hill and found that Ming Chai had taken off his clothes, shoes etc. Then, we put leaves onto the body of the deceased, and at once ran down the hill. Then, I drove the vehicle to Tai Wai. Ming Chai took away his schoolbag, got out of the vehicle and threw it away. Then, I was told to throw away the clothes, shoes etc. on the way. After I had thrown all the clothes, I returned home at about ten o'clock." (Emphasis supplied.)

However the versions differ, in none is there any suggestion that the attack upon the victim by Chan was other than a deliberate and forceful one; that is, that Chan intended to inflict at least really serious harm.

23. While directing the jury as to the evidence which related to the forcible detention count the judge said:

"Now it is a matter for you whether you find that these statements are true or that some parts of the statements are true. The defendant admits making these statements voluntarily. They weren't beaten out of him by the police. Of course, people sometimes say things that are not true. But if somebody voluntarily says something against their own interests, usually one can place reliance on such a statement as being true unless there is some reason why it should not be."

24. When he turned to the murder count the judge said:

"Now the murder count. Let us consider the cause of death. I doubt if you'll have any difficulty in accepting Doctor Yip's evidence that the boy died of asphyxia following strangulation and that moderate force was used to achieve this. It is, moreover, consistent with the defendant's cautioned statements of the 7th and the 8th of January in which he said he saw Chan grabbing the boy's neck.

The doctor's opinion is that there was a struggle for at least one minute. The time of death is estimated to be three days before the 8th of January, which is consistent with the other evidence. The boy had bruises on his face and his head, consistent with having been punched. There were abrasions and sliding bruises on his body, consistent with having been dragged along the ground. You may think that the defendant must have been present at the incident on the hillside, because otherwise he could not have led the police to the grave."

The judge when directing the jury suggested two approaches which they might take to the evidence. Firstly he told them how they might approach the matter if they found no intention to confine but an intention to kill throughout. He said:

"Now members of the jury, if you find that the defendant had no intention of merely confining the boy in the house but intended to kill him and then demand the ransom, you will, I think, have little difficulty in deciding that he is guilty of murder, provided you are satisfied that the boy was killed with his approval."

25. This direction was clearly upon the basis that they rejected much of the exculpatory parts of the statements. He here made no mention of the intention of Chan.

26. He then directed the jury that if they found that the appellant "intended to keep him (the victim) in the house while negotiations with the father proceeded, then you must approach the matter with some care". He went on to deal with what he described as the "conflicting" statements. When so doing again he made no mention of any need to be satisfied as to the intention of Chan.

27. We next consider the speeches of counsel. Mr. Whitehouse, who appeared for the prosecution, submitted that the jury could find the appellant guilty of manslaughter if they were not satisfied that he was guilty of murder. He told the jury that even if they were not sure that he was "an active participant in a deliberate killing" nevertheless the appellant did "admit to taking part in a physical attack on the boy" and then counsel added, with reference to the statement: "he makes it clear there, he is saying, perhaps I should say, he is saying there that he did not intend to kill the boy."

28. Mr. Whitehouse went on to say:

"[Assuming] all he intended to do was to frighten the boy into not telling his parents about what had happened, that the killing was by the other man, and was utterly unforeseen by him. My submission is if you accept that account, then he is guilty of manslaughter because he took part in an attack on the boy, he clearly envisaged that some violence would be used to the boy if only to frighten him. Clearly he envisaged, he went further than that, he actually handed out some punches himself. It was a violent attack he was participating in. And the other man also joined in the attack and as a result the boy was killed. The boy's death resulted from the attack."

29. It was Mr. Whitehouse's submission that "if you accepted that account, then he is guilty of manslaughter because he took part in an attack on the boy, he clearly envisaged that some violence would be used to the boy if only to frighten him." Mr. Mackay, who appeared for the appellant, argued that the jury should reject this approach as there was "no evidence that the blow by itself led to the boy's death." Given these conflicting submissions the judge was required to direct the jury in this regard. This he did, saying:

"Now counsel for the Crown has addressed you on the crime of manslaughter, but I direct you that there is no question of manslaughter in this case. It is murder or nothing. The reason is this, the killing was not the result of the unlawful punching. It was the result of the other man's act of strangulation. Something has intervened, has come between the original unlawful act, that is the punching, and the cause of death, which was the strangulation.

This is so even though it might be said that the killing might never have happened but for the punching. In other words the killing is too remote from the punching and the defendant cannot be held responsible for what may have occurred indirectly as a result of his initial act. He cannot be said, in other words, to have caused the death."

30. This direction clearly related to the submissions of Crown Counsel. In this court, it is said by counsel for the appellant that the appellant does not complain of a failure to direct as to the kind of manslaughter suggested at the trial by the Crown. The complaint is of a failure to give a manslaughter direction of a different kind based upon the hypothesis that Chan accidentally killed the boy in the course of a mere assault, with no intent to kill or inflict grievous bodily harm.

31. The passage as to which particular complaint is made is as follows:

"You must consider what was in the defendant's mind at the time of the actual killing. This is the critical time. You can forget any question of intent to cause serious bodily harm in this case. If the boy was strangled by the other man, the defendant either intended the boy to die or he did not, and it is this question that you must concentrate on, members of the jury. In the former case, he is guilty of murder. In the latter, he is not guilty." (Emphasis supplied.)

It is submitted that when the judge told the jury they could "forget any question of intent to cause serious bodily harm in this case" he was plainly telling them that they should proceed upon the basis that Chan had an intent to kill and that the only question for them to determine was whether the appellant shared that intent. It is submitted that the jury should have first been told that they had to be satisfied that Chan did have such an intention and that they should have been reminded of the evidence, particularly the medical evidence, which indicated that moderate force would have been sufficient to have caused the death. The evidence overall and particularly the medical evidence, it was submitted, left open the possibility that Chan might not have had any such intent at all.

32. It is correct that the judge never told the jury that they had to be satisfied as to the intent of Chan. He proceeded throughout upon the basis that there was no issue as regards the intent of Chan to kill. The real question in this appeal is whether he was correct in so doing. It is important when considering this question to look again at the cautioned statements of the appellant.

33. In Exh.54 he said:

"I saw Chan Siu-ming on the slope of the hill knock Lai Tak-sum's head against the ground. Then he grabbed his neck. A short while later, he was seen removing his clothes."

Later in that statement he said:

"I found that he knocked his head violently and grabbed his neck pushing him onto the ground."

Later again the following exchange occurred:

"Q. Did you see whether Chan Siu-ming used weapon to kill Lai Tak-sum?

A. No; because at that time we only prepared to place him in confinement without having the idea of killing him. At that time I saw Chan Siu-ming knock his head against a nearby object and at the same time grab his neck in his arm."

In Exh.55 he said:

"Ming Chai then took the (deceased) to the place where the dead body of the deceased had been found at an earlier time. I saw him use the right arm to grab round the deceased's neck, pressing downwards with force exerted. (After) about three minutes, I stood in the thicket at a distance of about 20 feet below him. Later I saw Ming Chai remove his school blazer with great effort and at the same time loosen his necktie."

Finally in Exh.60 he said:

"I punched him twice and threatened him that he would be beaten again if he spoke it out on return. After that I said to Ming Chai to let it be as there was no other way. Ming Chai then said that what could be done if he spoke it out after he had been released. What should I do at that time if he was not released. Lai Tak-sum might be very frightened at that time and wanted to get up and Ming Chai grabbed round him tighter. At that time, I did not know what to do. When Ming Chai got his hands off, I saw Lai Tak-sum lie on the ground with blood at the corner of his mouth."

34. Very early in his speech to the jury Mr. Whitehouse had said:

"Well, the Crown's case here is that when that boy was killed, he wasn't killed by accident, he was deliberately killed. Whoever did it intended to kill him. I'll go into the reasons why the Crown's case is put that way in just a moment."

35. Mr. Mackay addressed the jury saying:

"Now you ought to consider this also, that there was an accomplice, another man against whom there was insufficient evidence. I cannot tell you what that evidence is because his Lordship has ruled it inadmissible. Nevertheless, the defendant has that other man there and puts the blame for this murder fairly and squarely on his shoulders." (Emphasis supplied.)

He went on to say:

"You must bear in mind this, that having discovered what the other man had done; put his arm round him and held him tight, he may have been speechless, he may have stood by and done nothing - doesn't necessarily mean he was lending moral support. He may have been astonished, he may have been dazed, looking on with disbelief what had happened in those woods." (Emphasis supplied.)

Short after he said:

"You do not know - you have not had the advantage of seeing the other man in this case, the man against whom there is insufficient evidence. The fact that there is insufficient evidence does not mean that he is not a guilty party. To assume that would mean that you will be indulging in prejudice and speculation. The guilty man may well be now free, that may well be the case, that certainly is the defendant's story, and he is entitled to be believed on that score as far as that is concerned." (Emphasis supplied.)

Referring to the medical evidence he said:

"The pathologist referred you to the linear abrasions which he said were caused by a forearm or an arm very likely. Well members of the jury, that accords with the story the defendant has told and it was thereafter that the grip was made more tight by the other man. That also, members of the jury, accords with the evidence of the pathologist."

36. We restate the real issue in this appeal. Was the judge right to proceed upon the basis that there was no issue as regards Chan's intent to kill? The appellant in his statements referred five times to the actions of Chan. The descriptions he gave were:

"he grabbed his neck"

"he knocked his head violently and grabbed his neck pushing him onto the ground."

"Chan Siu-ming knock his head against a nearby object and at the same time grab his neck in his arm"

"I saw him use the right arm to grab around the deceased's neck, pressing downwards with force exerted."

"Lai Tak-sum might be very frightened at that time and wanted to get up and Ming Chai grabbed around him tighter."

37. We are mindful of the statement in the speech of Lord Tucker delivering the reasons of the Privy Council in Bullard v. The Queen [1957] A.C. 635 where he said at p.644:

"Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given. To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached."

38. The only evidence as to the fatal assault in the present matter came from the statements of the appellant which clearly spoke of a forceful and deliberate strangulation. In one statement he said it took about three minutes. The medical evidence, when placed in the context of the evidence as a whole, was not such as would cause any doubt as to the evidence of deliberate strangulation.

39. We note that defence counsel at trial did not rely upon any suggestion that the strangulation was other than deliberate. Indeed it was the defence case to put the blame for the murder "fairly and squarely on his (Chan's) shoulders". We are, of course, mindful that, even though defence counsel did not rely upon it, had there been any evidence that left a verdict of manslaughter open, it would have been the duty of the judge properly to direct the jury thereon.

40. We are, however, given the above, satisfied that the judge was right to proceed upon the basis that there was, upon the evidence before him, no issue as regards the intent of Chan to kill. There being no evidence which required that the issue of manslaughter be left to the jury the judge was right to direct as he did. The appeal must be refused.

Representation:

Mr. A.A. Bruce, Q.C. & Mr. Veltro, S.C.C. (Crown Prosecutor) for the Respondent.

Mr. Martin Lee, Q.C. & Mr. G.J.X. McCoy assigned by D.L.A. and Mr. P.Y. Lo instructed by Messrs. Or, Ng & Chan for the Appellant.