10.
It was further complained that the commissioner was wrong to
(5) distinguish the present case from the Anderson & Morris type of case where one of two persons taking part in a concerted attack, departed completely from the scope of the common design by using a weapon in a manner which the other party had no reason to suppose would occur, so causing death. Having referred to that type of
case the learned commissioner said:
"But this case we are dealing with is a different sort of case, and I think you can safely dismiss from your minds any consideration of whether there was a pre- arranged beating or pre-arranged killing. I think you should deal with the matter on the basis that the beating was something which was not really pre-arranged but arose, probably when it proved impossible to produce the girl or return the money.
#7
We think this was a realistic assessment of the situation
in the present case and we are unable to agree with Mr. Leung that when the learned commissioner asked the jury to dismiss from their
minds any question of a pre-arranged beating, he was asking them to
dismiss from their minds the question of common intent and was, in
effect, withdrawing common intent from the jury. There was, as we shall see, a perfectly adequate direction upon common intent.
It was further suggested that the commissioner should have
asked the jury to consider whether the specific acts of specific
individuals went beyond common intent but since there was no evidence
that any specific act of any specific individual was the proximate
cause of death, we are unable to see which particular specific
acts should or could have been so referred to by the learned
commissioner. Á similar comment must apply to the beating of
YEUNG Shing.
It was further Mr. Leung's contention "that the learned
commissioner omitted to direct the jury that the death of Shanghai
Chai was caused by an act of a person beyond the common intention or design of the (5th) appellant". As to this we merely observe
that it was entirely a matter for the jury and it would have been
wrong for the commissioner to direct the jury in the manner in which
it is here complained that he failed to direct them.
(5) (1966) 2 Q.B. 110