The Queen v. Tang Cheng-shu
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CACC000972/1983 IN THE COURT OF APPEAL
Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A. Date of Judgment: 14th February 1984 __________ JUDGMENT __________ Sir Alan Huggins, V.-P. : 1. This is an application for leave to appeal against a conviction on a charge of murder. 2. The Appellant filed grounds of appeal which have not been pursued. Only two grounds have been argued before us The first relates to the direction on provocation. It is suggested that the jury would not have understood the correct test to be applied by them and that the fact that they were misled appears from the fact that they sent a message to the judge inquiring whether what they had written on a piece of paper was acceptble. It was in these words : "We, members of the jury, unanimously agreed that the accused has the intention to seriously harm the deceased but not the intention to kill." It does not appear that anything more was said and, speaking entirely for myself, I would have taken that as indicating that the jury wished to attach a rider to their verdict of Guilty to the effect that the intention which they found was not that to kill but to do serious harm. However, the judge appears to have thought that this was the verdict which they wished to return. 3. Assuming that the judge was correct we still do not think that this is a sufficient indication that the jury did not understand what the test was which they had to apply. The direction which had been given was repeated on a number of occasions. There is one place where the judge clearly want wrong. That was in his further direction, after the message had been received from the jury, when he said: "Because if you remember I told you that provocation if proved reduces murder to manslaughter". Counsel for the Appellant correctly pointed out that that was a misdirection and the judge expressly said to the jury "I made a serious error there" and he again directed the jury that "The onus of proof was on the Crown to show that there was an absence of provocation." Then he he said:
4. In a case of provocation there is as is laid down in the cases and even in the statute itself, a test consisting of two parts and they are put in this order: first, whether the defendant was or might have been provoked and, secondly, whether a person in the position of the defendant would reasonably be provoked by what had been said and done. It is argued on behalf of the Appellant in this court that the judge in fact did not leave both questions to the jury. We think that he did. It is true that he did suggest on two occasions that only if the answer to the first question was a definite "Yes: he was provoked" did the second question arise, but the judge very clearly said to the jury that the burden was on the prosecution. If the jury was satisfied so that they were sure that the accused was not provoked, that was an end of the matter and the second question did not have to be considered by the jury. Equally if they were satisfied so that they were sure that a reasonable person would not have been provoked so as to do what the Appellant did, that was an end of the matter and it was not relevant whether the Accused was in fact provoked. The court in Phillips v Reg. 1969 2 A.C. 130 pointed out that the two questions were to be put in the order in which I have stated them, but quite clearly the two questions are independent and if, although it may be more convenient to take them in that order, they are taken in the opposite order there cannot in our view be any harm done. If the jury were satisfied so that they were sure that no reasonable person would have been so provoked as to do what this Appellant did, then it mattered not whether or not this Appellant was provoked. On both p.111 and on p.115 of the record the judge used the correct formula and left it to the jury to decide whether they were sure that he was not provoked and whether they were sure that the provocation was not enough to make a reasonable man act as the Accused did. In our view the direction given by the judge was unexceptionable. 5. The second point taken is that the judge withdrew the issue of drunkenness from the jury. The view we take is that the issue of drunkenness never really arose in the case. The learned counsel for the Appellant at the beginning of the case indicated that the defence was provocation. At no point from beginning to end did the defence raise any issue as to drunkenness. It is true that there was some evidence that the Appellant had had some drink. If there were any evidence to justify a jury in coming to the conclusion that the Accused was so affected, or might be so affected, by drink that he could not form the intention required for a conviction for murder, then even though counsel had not raised the issue the issue arose on the evidence and it was the duty of the judge to deal with it. 6. The question we then have to consider is whether the evidence did in fact raise such an issue. We have been taken through the record in detail and at the most it can be said that the Accused said that he was "rather impulsive" at the time. He did at one stage say "I did not intend to hit him", but that was not directly in the context of drink and, having considered the matter with the assistance of counsel, we have come to the conclusion that there was no evidence which raised the issue of drunkenness. The question which might have arisen was whether the accused by reason of having taken drink did not form the necessary intention. The judge clearly directed the jury as to the intention required and what in effect is being said is that the judge failed sufficiently to direct them on the evidence. We think that the evidence was not such that it was incumbent on the jury to say to them expressly that they had to consider whether the effect of the drink taken by this Appellant was such that he was incapable of forming the intent and therefore did not form the intent. That being so we think that this application must be dismissed. 14th February 1984 |