Chan Charn Kau Alias Kau Chai and Another v. The Queen
|
CACC000966/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 966 OF 1971 -----------------
----------------- Coram: Rigby, C.J., Briggs & Huggins, JJ. Date of Judgment: 27th January, 1972. ----------------- JUDGMENT ----------------- 1. This is an appeal against a conviction for murder. The case against the two Appellants was that they were members of a gang of youths who attacked another gang of youths on the second floor of Block 6 of the Li Cheng Uk Resettlement Estate. The attackers were alleged to be armed with knives and wooden clubs and it is not disputed that one of the Appellants stabbed the Deceased, causing a wound from which he died. However, there was a conflict as to which of the Appellants it was and an even greater conflict as to the circumstances in which the fatal blow was struck. The Appellants contended that they were alone and that they had gone upstairs merely to reason with the other gang, who had been taunting them and challenging them. They said that by chance they noticed a hand cart which contained nothing but a knife and a triangular file, with which weapons they armed themselves before going up, taking them merely to deter the other gang from assaulting them. In spite of these defensive precautions they say that the Deceased attacked the 1st Appellant. 2. Several grounds of appeal are advanced but it is enough that counsel for the Crown finds himself unable to support the conviction by reason of the failure of the learned judge adequately to direct the jury as to the burden of proof. It was the case for the Appellants that the weapon which caused the fatal wound was in the hand of the 2nd Appellant but they contended that the 2nd Appellant was defending the 1st Appellant against the assault by the Deceased and that the wound was accidental. The learned judge indicated that "the defence of accident can only succeed if you believe three matters" and he went on to indicate what those three matters were. On a fair reading of the whole summing-up it was not clearly left to the jury that if they were in doubt whether the Appellants struck the Deceased with malice aforethought they must acquit, although in relation to the issue of provocation and the issue whether the 2nd Appellant realized he had a weapon in his hand he did make it clear what the jury should do if they were left in doubt. However, the general tenor of the summing-up was that the Appellants must fully satisfy the jury that their version of the events was true before the jury should acquit. Accordingly the conviction cannot stand. 3. The question has then arisen whether the Appellants should be discharged or whether we should direct a new trial. The error was not the fault of the prosecution, but it is argued that this is not a case where a retrial is "likely to lead to a conviction". It is emphasised that, despite the misdirection which appeared in the original summing-up, the jury attempted to return "a verdict of manslaughter" by a majority of 4 to 3. Even if they had understood that the proper verdict would be "Not guilty of murder but Guilty of manslaughter" we do not think any inference should be drawn from the disagreement, especially as the jury subsequently sought further direction concerning the distinction between murder and manslaughter. It is true the misdirection was then repeated rather than cured but we think the true test is not so much whether a conviction upon a retrial is likely as whether a conviction is unlikely. The alleged weaknesses in the prosecution case which have been drawn to our attention are not such that a conviction is unlikely and, having regard to all the circumstances, the Court is of the view that justice requires a new trial. 4. We direct accordingly. 27th January, 1972. Representation: |