LAM TIN YAU v. THE QUEEN

bjbj CACC000672/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO.672 OF 1975 ----------------- BETWEEN LAM TIN YAU Appellant THE QUEEN Respondent ----------------- Coram: Briggs, C.J., Huggins & McMullin, JJ. Date of Judgment: 24th October 1975. ----------------- JUDGMENT ----------------- Huggins, J.: The Appellant was indicted on two counts of murder, the victims being a man and a woman. He was convicted of the murder of the woman and the manslaughter of the man and he now appeals against those convictions. It is unnecessary to state the facts in detail. There was a quarrel between the Appellant on the one hand and the man and the woman on the other which ended with the Appellant's hitting them both on the head with a hammer, causing terrible injuries from which they died. He gave evidence upon which the jury could properly have acquitted the Appellant on the basis of self-defence or alternatively returned verdicts of Not guilty of murder but guilty of manslaughter on the basis of provocation. It has been argued on the appeal that the direction of the learned judge as to provocation was incorrect. Counsel submits that the effect of the summing-up was to tell the jury that they had to consider separately any provocation offered by each of the Deceased instead of directing them that they should have regard to the cumulative effect of all the provocative acts and words of both victims upon both counts. The Court of Appeal in England in Reg. v. Davies 1975 1 All E.R. 890 expressed the view that the Common Law on this point had been changed by the Homicide Act 1957. With the utmost respect I question whether the Common Law ever was that where A was provoked by B and discharged a gun at B, killing him and with the same bullet unintentionally killing C, an innocent bystander, the offence was manslaughter in respect of Band murder in respect of C. Be that as it may, there is no doubt as to the law under the statute - in Hong Kong s.4 of the Homicide Ordinance: " ... acts or words otherwise to be treated as provocative .... are not excluded from .. consideration merely because they emanate from someone other than the victim": Idem at p.896. The learned judge in the court below in giving a general direction on provocation adopted the well-known language of Devlin, J. in R. v. Duffy 1949 1 All E.R. 932 and referred to "some acts or series of acts done by the dead man to the accused". However, when he came to apply this general direction to the particular facts of the case he made it abundantly clear that what the jury had to consider was the acts and words of both the deceased persons and we are satisfied that there is no substance in this point. A much more difficult question arises upon a ground of appeal which was sought to be added at the hearing, namely that the verdicts on the two counts were inconsistent or, if not entirely inconsistent, so surprising that the verdict of Guilty of murder was unsafe. It was a premiss of the argument on behalf of the Appellant that the verdict of Not guilty of murder but guilty of manslaughter was based upon provocation. The contention was that the fatal injuries were inflicted on the two victims within such a short space of time that if the Appellant was subject to a sudden and temporary loss of self-control rendering him not master of his own mind when he killed the man he must have been suffering from such loss of self-control when he killed the woman. As my Lord the Chief Justice pointed out during the argument, that submission was analogous to the contention on behalf of the Appellant in Reg. v. Durante 1972 1 W.L.R. 1612, where it was held that an acquittal which was explicable only on the basis that the accused had been too drunk at the material time to be able to form the necessary criminal intent was inconsistent with a verdict of Guilty of an offence some twenty minutes earlier involving a similar intent, the evidence being such that he could hardly have sobered up in the mean time. Mr. Polson for the Crown does not attempt to argue that the verdicts were safe if that on Count 2 was indeed based upon provocation. However, he contends that there is another explanation for that verdict. Indeed, he says that the medical evidence did not support the story of the Appellant that he was violently assaulted by the two victims and that the jury may well have rejected the defence of provocation altogether. If they did, the verdict on the second count could only have been returned on the basis that the jury also rejected the defence of self-defence but were not satisfied that when he struck the man the Appellant had an intent to do grievous bodily harm or to kill. It is true that such a conclusion would be surprising but the question we have to decide is whether the two verdicts were ex necessitate illogical and inconsistent with each other: Smith (1973) 57 Cr. App. R. 680. Although it may be that the verdicts in the present case are even more surprising than those in Smith, can we say that no reasonable jury could possibly have returned the verdicts which were returned in the present case? We have come to the conclusion that we cannot go so far as that and it necessarily follows that this ground of appeal also fails. The application for leave to appeal against convictions must be dismissed. 24th October 1975. Representation: PAGE PAGE - - &`#$ &`#$ W[SO {FS*| CACC000672/1975 LAM TIN YAU v. THE QUEEN Normal xucm Microsoft Word 9.0 z$zG Judiciary Hong Kong SAR Judiciary Hong Kong SAR CACC000672/1975 LAM TIN YAU v. THE QUEEN Microsoft Word MSWordDoc Word.Document.8 CACC000672/1975 LAM TIN YAU v. THE QUEEN Normal xucm Microsoft Word 9.0 z$zG Judiciary Hong Kong SAR Judiciary Hong Kong SAR CACC000672/1975 LAM TIN YAU v. THE QUEEN