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Contd.
(3)
1103, PRINCE'S BUILDING
DES VOEUX ROAD
HONG KONG.
11th
June,
19 74
(4)
(5)
That the learned judge misdirected the jury on fact, in saying to them that the evidence of Messrs. Au, Wu and the widow about the beating on the neck was not inconsistent with the medical evidence.
The learned judge misdirected the jury on fact when he directed the jury to the effect that if they were convinced that it was the accused who struck the deceased on the back of the head then he was using an iron rod whereas considering the evidence as a whole the balance of probabilities was that, in those circumstances, the instrument used was an aluminum billiard cue.
Generally, it is clear from the evidence taken as a whole that, although this assault could be' said to be entirely unprovoked, nevertheless, the death of the deceased was not intended. There was no knife or anything like that used, and whilst the accused, if he was in the assaulting party, should be severely punished for manslaughter, the evidence as a whole is at least as consistent with an intention to assault, short of doing grievous bodily harm, as with an intention to kill or inflict grievous bodily injuries.
(6). The evidence was unsatisfactory
as to the degree of participation of the accused. Wu Chi Kin, a boy of 14 probably with the same surname in Chinese as the deceased's, who was living at the home of the deceased and his wife as was Au Chuen, were the only witnesses who gave any
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