CHAN YIU-TONG ALIAS CHAN TONG v. THE QUEEN

bjbj CACC000145/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 145 OF 1971 ----------------- BETWEEN: CHAN Yiu-tong alias CHAN Tong Appellant THE QUEEN Coram: Rigby, C.J., Mills-Owens & Pickering, JJ. Date of Judgment: 19th May, 1971 ----------------- JUDGMENT ----------------- On the 9th March, 1971, the appellant was convicted of murder; he now applies for leave to appeal against his conviction. In accordance with the usual practice in such cases we have treated the application for leave to appeal as the hearing of the appeal itself. Before considering the grounds of appeal it will be convenient to state the facts. They fall within a fairly narrow compass. Shortly after 8 p.m. on the 25th October, one MAK Kwok-kuen, a young man aged about 23 years, received two stab wounds, one on the side of his neck which entered the windpipe and one in his chest which penetrated into the liver. He died shortly afterwards. The cause of death was shock and bleeding due to stab wounds in the liver and neck. There were also two superficial cuts on the side of his face, shallow cut wounds on his chest, right arm and left thigh and a shallow stab wound in the front part of his right leg. He received these injuries in the small room or cubicle which he shared jointly with another man named MAN Kin-kwok on the 7th floor of premises at 251 To Kwa Wan Road, Kowloon. The premises in question was a boarding house with a considerable number of small rooms or cubicles occupied by different persons. The two stab wounds which caused the death were inflicted with a long-bladed meat knife. the blade of which was 9 1/2 inches long, varying in width and being 1 1/2 inches in width at its widest part. The deceased was, or had been, a butcher's assistant and was known by the nickname of "Big Beef". It was beyond dispute that the fatal injuries were inflicted by the appellant and the defence put forward at the trial was one of self-defence. The appellant is a man aged 38 and he earned his living as a painter. He had formerly lived with his younger brother on the 6th floor of 253 To Kwa Wan Road but had moved from there some time in 1968 when he got married. 253 and 251 To Kwa Wan Road have a common staircase. There was evidence that some 10 days prior to the death of the deceased the appellant had been going up the stairs to see his brother when a man came down the stairs and bumped into the appellant knocking to the floor the bottle of beer the appellant was carrying. The bottle was broken. The man who had bumped into the appellant was the deceased. There was then an argument and a quarrel between the appellant and the deceased. Some few days later the deceased, in company with two or three other young persons, called at the premises where the appellant's brother lived on the 6th floor of 253 To Kwa Wan Road and made inquiries about the appellant. There was some evidence that the demeanour of these persons at the time was threatening. The appellant gave evidence that some four days before the death of the deceased he saw the deceased and two other persons in the street; that the deceased was armed with a knife wrapped in newspaper but the point of which was protruding and his companions each had a hammer; that the deceased called upon his companions to attack the appellant and that as a consequence he, the appellant, took to his heels and ran away. There was evidence that between 6 and 8 p.m. on the night of the death of the deceased the appellant was at a bottle store situated almost immediately outside the entrance to 251/253 To Kwa Wan Road. During that time he consumed two or three bottles of beer and a small bottle of Chinese wine. It was not suggested that there was anything sinister about the appellant being at the bottle store at that time since there was evidence that he frequently went there. Whilst he was there his younger brother arrived at the store; so also did the deceased. According to the evidence of the appellant his younger brother appeared to be frightened by the fact that the deceased was also there. After the younger brother had gone a quarrel ensued between the appellant and the deceased, during the course of which the deceased threatened him, asked him if he was a member of any triad society [- insinuating, presumably, that he, the deceased, was a member of a triad society with all the attendant advantages that membership of such an unlawful society was supposed to confer -] demanded from the appellant $500 and also threatened to kill the appellant's younger brother. The deceased then left and entered the premises where he lived. The appellant remained at the store for some time thinking over what had been said to him. Some five minutes later he decided he would go upstairs and discuss the matter further with the deceased. He went up to the 7th floor and inquired from someone on the premises which was the room occupied by the deceased and, on being so informed, entered the room or cubicle occupied by the deceased. According to the appellant's evidence there were four persons then in the room, including the deceased. Three of those persons withdrew leaving him alone with the deceased. A further quarrel then ensued between them during the course of which the deceased picked up a stool with which he attacked the appellant. There was a struggle between them for possession of the stool. According to the appellant's evidence the deceased then picked up a knife which was at the time lying on a bunk wrapped in newspaper, and with that knife he attacked the appellant. It was in the course of the struggle that then ensued that the deceased received the injuries which caused his death. The appellant then ran out of the room, taking the knife with him. Later, in the early hours of the following morning, he surrendered himself to the police and took them back to the premises where he lived and he there pointed out to them where he had placed the knife. When formally charged with murder the appellant said:- " I did not intend to kill him. (I) stabbed him several times because of a momentary anger. I did not know that he would die because at the time I was slightly under the influence of wine (and) stupefied. At the time the deceased said that (he) would kill my younger brother and me. He said that (he) would get some triad society people to go after me." MAN Kin-kwok, the deceased's fellow occupant of the room was in the room at the time the appellant entered it. He said that it was about five minutes after the deceased had entered that the appellant came into the room. He said that at that time there were only the three of them in the room. He said that the attitude of the appellant at the time he entered was aggressive and thinking that there was likely to be trouble he himself left the room. He further said that after the appellant had himself entered the room he, the appellant, seemed to take something "out of his waist". He was unable to see what that "something" was and it was then that he left the room. Mrs. So, the occupant of an adjoining cubicle, gave evidence that shortly after 8 p.m. she heard a noise coming from the cubicle occupied by the deceased and she heard a voice say "Don't beat" or "Don't fight". She went to see what was happening and on looking into the room she saw someone, whom she described as the assailant draw a knife from his waist and stab the deceased - whom she knew and recognized - with it. At that time there were only two people in the room. She then telephoned '999'. Her evidence is somewhat at variance with MAN Kin-kwok since, according to his evidence, he had actually been in the room when the appellant drew "something" from his waist but he had been unable to see what that "something" was. So much for the evidence to which I have referred only very briefly. The sole defence relied upon throughout the trial was self-defence. Mr. Mills-Owens, who appeared for the appellant at the trial and also upon the hearing of this appeal, has said that that defence was put forward by him upon the instructions he had himself received and, furthermore, he himself considered that to advance an alternative or parallel defence of provocation might well weaken what was, in truth, the substantial defence, namely, that what the appellant had done was done by him solely in self-defence. That was, of course, a defence which, if successful, would have entitled the appellant to a complete acquittal. The danger of running parallel defences of self-defence and provocation was well illustrated by Lord Devlin in the case of R. v. Lee Chun Chuen (1) when he pointed out that:- " The admission of loss of self-control is bound to weaken, if not to destroy, the alternative defence (i.e. self-defence) and the law does not place the accused in a fatal dilemma." He went on to say:- " But this does not mean that the law dispenses with evidence of any material showing loss of self-control. It means no more than that loss of self-control can be shown by inference instead of by direct evidence. The facts can speak for themselves and, if they suggest a possible loss of self-control, a jury would be entitled to disregard even an express denial of loss of temper, especially when the nature of the main defence would account for the falsehood. An accused is not to be convicted because he has lied." On the face of it, there was undoubtedly fairly strong evidence from which the jury might reasonably infer that the appellant, smarting under the words that the deceased had spoken to him at the bottle store downstairs, had followed the deceased up to his room and that, in so doing, he was deliberately looking for trouble. On the other hand, a strong point in favour of the appellant was the fact that the injuries were inflicted with a meat knife, that the deceased himself was a butcher's assistant, that there was no evidence (other than, of course, the evidence of Mrs. So) that the appellant had been seen in possession of this long-bladed and fairly conspicuous looking weapon before the incident and that there was, therefore, at least a reasonable probability that the knife belonged to the deceased and had been in his room at the time the appellant had entered. Despite the defence of self-defence put forward and solely relied upon by the defence the learned Commissioner, in the exercise by him of a perfectly proper discretion, put forward for the consideration of the jury the defence of provocation. The law is now well settled that upon a trial for murder if on the evidence, whether of the prosecution or of the defence, there is any evidence of provocation fit to be left to a jury, and whether or not this issue has been specifically raised at the trial by counsel for the defence and whether or not the accused has said in terms that he was provoked, it is the duty of the judge, after a proper direction, to leave it open to the jury to return a verdict of manslaughter if they are not satisfied beyond reasonable doubt that the killing was unprovoked. (Bullard v. The Queen (2)). It is, however, of crucial importance that where the defence of provocation is left to the jury for their consideration the jury must be properly directed upon the law in relation thereto. At an early stage in his summing-up to the jury, the learned Commissioner correctly directed them in these words:- " At the outset I must stress that the general rule as to the onus of proof being on the Crown to prove their case beyond reasonable doubt also applies to provocation, and it is for the Crown, that is, the prosecution, on the whole of the evidence to satisfy you beyond reasonable doubt that the death of MAK Kwok-kuen was caused by the intentional and unprovoked act of the accused, and on the question of provocation, if you are left in any doubt whether there was sufficient provocation to reduce the killing from murder to manslaughter, that issue must be determined in favour of the accused." Again, towards the conclusion of his summing-up, he said this:- " You must consider the evidence as a whole, and if on the whole of the evidence, you are satisfied beyond reasonable doubt that the accused killed the deceased, then you must still be satisfied beyond reasonable doubt that the accused killed the deceased either with the intention of killing him or causing him serious injury, taking into consideration the law as I have already explained it to you, before you can return a verdict of murder." Unhappily, however, he then went on to say:- " On the other hand, on the evidence, if you are satisfied beyond reasonable doubt that the accused killed the deceased as a result of provocation, provocation as I have already defined to you, and if that provocation is such as to be sufficient to reduce murder to manslaughter, and then you are at liberty to return a verdict of guilty of manslaughter." Quite clearly, that was a patent misdirection on the law in that it was placing the onus of proof - and proof beyond reasonable doubt - on the accused to establish that he killed the deceased as a result of provocation. Nor do we think that that misdirection was cured by the words that the judge then went on to say, namely:- " but it is up to the Crown, the prosecution, to prove beyond reasonable doubt, to prove the absence of such provocation." The effect of the two passages were mutually inconsistent and directly contradictory and in the plain meaning of the words used must have left uncertainty in the minds of the jury as to what was the position in law if they were left in doubt whether or not the appellant had killed the deceased as the result of provocation. It is, again, true that very shortly afterwards the learned Commissioner went on to say, when dealing with the defence of self-defence:- " ..... remember what I have told you about the burden of proof, and if there is any reasonable doubt in your mind then the benefit of that doubt must be given to the accused." But we do not think that that direction cured the damage already done by the earlier passage to which we have referred in which the jury were plainly told that:- " ..... if you are satisfied beyond reasonable doubt that the accused killed the deceased as a result of provocation ..... then you are at liberty to return a verdict of guilty of manslaughter." The position is rendered all the more difficult by reason of the fact that the jury themselves, after they had retired for one hour and fifty-five minutes, returned to ask for a further definition of the law of provocation. The Commissioner gave that definition by reading to them Section 4 of the Homicide Ordinance and going on to say that it was for them to determine as a matter of fact " whether you think that provocation or any provocation - any evidence of provocation would provoke a person - a reasonable man to lose his self-control." No doubt that was a perfectly clear and proper direction as to what provocation might be sufficient to reduce a killing from murder to manslaughter but it did not, of course, assist in curing the earlier misdirection as to where, and upon whom, the proof lay to establish the existence of that necessary degree of provocation and what was the position in law if the jury were left in doubt as to whether there was provocation and, if so, whether that provocation was sufficient to have cause a reasonable man to do what the accused did do. Following the accepted principles, since this court is clearly unable to speculate with any degree of certainty that the jury would necessarily and inevitably have returned a verdict of guilty of murder if they had been properly directed on this issue, we have no alternative but to allow the appeal, quash the conviction for murder and substitute therefor a conviction for manslaughter. Representation: Mills-Owens (Ngan & Wong) assigned for the Appellant. Judgment of the Court delivered by the President. (1) (...(illegible)) H.K.L.R. 443 @ 453. (2) (1957) A.C. 635. PAGE - PAGE \* MERGEFORMAT - &`#$ CACC000145/1971 CHAN YIU-TONG ALIAS CHAN TONG v. THE QUEEN Normal Agnes Liu Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR CACC000145/1971 CHAN YIU-TONG ALIAS CHAN TONG v. THE QUEEN Title Microsoft Word Document MSWordDoc Word.Document.8 CACC000145/1971 CHAN YIU-TONG ALIAS CHAN TONG v. THE QUEEN Normal Agnes Liu Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR CACC000145/1971 CHAN YIU-TONG ALIAS CHAN TONG v. THE QUEEN Title