- 3-
that the second Applicant asked the third Applicant to remove a knife from KWONG Chi-ling's residence and return it to the Miramar Cake Shop. Payment of $300 was made later and the first Applicant said he would pay the balance as soon as his father's estate was fixed up.
The Applicants did not deny that there was a conspiracy to the prejudice of the Deceased. The second Applicant's case was that there was an agreement to beat him up but not to cause as much as grievous bodily harm, the reason for the assault being stated to be that the Deceased was interfering with the first Applicant's smuggling business. The others said that robbery was the true purpose and that robbery was not merely to be a cover for a physical attack. The second Applicant admitted that he had armed himself with a knife, his reason being that he had been warned that the Doceased was experienced in Chinese boxing. There was evidence that the second Applicant had stolen a triangular file shortly before the incident and he himself said that the third or fourth Applicant had a triangular file. The first Applicant's defence was that he incurred gambling debts in the second applicant's favour and that he suggested a robbery in order to make good these debts. He said the $2,000 he gave to Cheng had come from his mother to pay off the gambling debts and that when Cheng pocketed this sum he made the subsequent payments of $300 to be passed to the second Applicant for the same purpose. The second Applicant did not agree with all this. Both the third and fourth Applicants denied that they were present when the alleged offence was committed.
The first point argued on behalf of the second to fourth Applicants is that the learned judge failed to leave a possible verdict of not guilty of murder but guilty of manslaughter open to the jury save on a very restricted basis. It is submitted that if the evidence of the second Applic-nt were believed the jury would have found that these three Applicants had a common intent unlawfully to assault or to rob the Deceased but no intention to kill him or to do him grievous bodily harm: therefore the lesser verdict should have been left to them. There is, of course, no doubt that where the evidence would enable a jury to find facts establishing manslaughter they must he directed that a verdict of not guilty of murder but guilty of manslaughter is open to them. Cons, J. drew counsel's attention to a passage in the summing-up where the judge said: