TNAG-0487-FCO40-552-Review-of-death-sentence-in-Hong-Kong-1974 — Page 228

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apparently were blows given by the 1st accused or the 2nd accused with the intention of doing grievous bodily harm to the deceased or killing him, of course, you would convict the 1st or 2nd accused or both of murder. But the evidence in support of such a view is small, very small."

Although counsel for the Crown has submitted that this was not a

misdirection, we think it clearly was. Evidence fit to be left to

the jury that either of the Appellants struck either of the fatal blows (or, indeed, any blow at all upon the Deceased) was not "small" or "very small": it was non-existent. Of course there was a possibility that each Appellant struck one of the fatal blows. If that had been proved it might have been unnecessary for the jury to consider the question of a common intent, but counsel rightly contends that unless it was open to the jury so to find then a conviction of

both would have to be based at least in part upon a finding of

common intent and that the passage we have cited suggested the

contrary.

In the alternative counsel for the Crown submits that this

is a proper case for the application of the proviso to s.83(1) of

the Criminal Procedure Ordinance. He says that although there was

a possibility that the jury might, acting upon this direction, have

found that one or both of the Appellants struck a fatal blow, that

possibility was so remote that it could be ignored. Earlier in his

summing-up the learned judge had said:

"As Mr. LI told you, the Crown does not claim that either of these accused physically assaulted the deceased. Whether they did or not will never be known, there is no direct evidence to show they did, and there is some evidence to show that they were in a somewhat different part of the premises, these very small premises which you have seen. It will be for you to consider whether they were parties to a scheme to kill or do grievous bodily harm at those premises or whether they were not.'

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As we understand it that was at its weakest an invitation to the jury

to base their decision upon the existence or absence of a common

intent, but on behalf of the first Appellant it is in effect

contended that use of the word "direct" at this point prevented that direction from being prayed in aid to negative the subsequent misidrection. Counsel for the Crown submits that the evidence pointed

overwhelmingly to the existence of a common intent and that if the