TNAG-0403-FCO40-449-Review-of-the-death-sentence-in-Hong-Kong-1973 — Page 29

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TO IMMEDIATE GOVERNOR HONG KONG TELEGRAM NUMBER 1210 OF 26 NOVEMBER. 1973 YOUR TELEGRAM NUMBER 1356: DEATH SENTENCE: LEUNG PING-FAT.

1. YOU DO NOT SAY WHETHER YOU HAVE HOW VARIED THE DECISION IN YOUR 223 TELEGRAM NUMBER 1123 THAT, ALTHOUGH THE CASE MIGHT WELL CAUSE CONTRO-

VERSY IN EXECUTIVE COUNCIL, YOU WOULD COMMUTE. WE THEREFORE TAKE IT THAT THIS DECISION STILL STANDS. GRATEFUL IF YOU WOULD CONFIRM THIS: THERE WOULD NOW BE NO TIME TO COMPLETE THE AGREED PROCEDURE BEFORE 4 DECEMBER: AND IF YOU WERE TO RECONSIDER YOUR DECISION WE SHOULD BE

IN THE SAME POSITION AS WE MERE OVER TSO!.

2. OUR ORIGINAL SUGGESTION THAT COMMUTATION WOULD BE JUSTIFIED WAS

BASED ON THE FACTS:

(A) THAT THE ONLY EVIDENCE AGAINST LEUNG WAS HIS OWN CONFESSION WHICH-

HE LATER TRIED TO WITHDRAW, HE WAS CONVICTED, WHILE THE OTHERS WHOSE CONFESSIONS WERE INADMISSIBLE WENT FREE:

(B) THAT THE JURY DID NOT CONSIDER THE DEFENCES OF PROVOCATION OR

SELF-DEFENCE BECAUSE THEY WERE NOT LEFT TO THEM BY THE TRIAL

JUDGE.

3. WE CAN SEE THAT WHAT LEUNG NOW SAYS IN HIS PETITION TO YOU DETR- ACTS SUBSTANTIALLY FROM HIS DENIAL OF HIS CONFESSION, BUT WE ARE STILL CONCERNED ABOUT HIS OTHER POSSIBLE DEFENCES,

4. THE APPELLATE COURT NOTED, RIGHTLY IN OUR OPINION, THAT IF THERE IS EVIDENCE, HOWEVER TENUOUS, FROM WHICH A REASONABLE JURY COULD INFER THAT THE ACCUSED KILLED IN SELF-DEFENCE OR AS A RESULT OF PROVOCATION, THE JUDGE USURPS THE FUNCTION OF THE JURY IF HE WITH- DRAWS THE DEFENCES FROM THE JURY. THEY WENT ON TO CONCLUDE THAT THIS WAS A BORDERLINE CASE, BUT COMMENTED THAT THE INHERENT WEAKNESS OF THE DEFENCE WAS EMPHASISED BY THE FAILURE OF THE APPELLANT TO GIVE CRAL TESTIMONY IN SUPPORT OF IT AT HIS TRIAL.

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