TNAG-0487-FCO40-552-Review-of-death-sentence-in-Hong-Kong-1974 — Page 262

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Mr Stuart (HKIOD

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HONG KONG : WAN AND OTHERS

1.

oyer need to

inviing of basenor's decision in

WK bel No 342.

You handed me these papers on 12 March and I have read through the bulk of the evidence, the judge's summing-up, the judgment of the Full Court and the judge's report.

2. There seems little room for doubt that the five accused, with five others who escaped, deliberately inflicted a severe and prolonged beating likely to cause grievous bodily harm to two men, as a result of which one of them received injuries from which he died very shortly afterwards.

3. The jury appear to have received adequate directions from the trial judge and their finding of murder in the light of these directions is amply justified by the evidence indeed any other finding would have been surprising. It does not seem to me that there is anything in the trial that calls for commutation of sentence on technical grounds.

4.

The following factors could be taken into account in favour of the accused

5.

[•]

(a) the killing was not premeditated;

(b)

although those concerned clearly intended to administer a severe beating, they probably did not intend to kill their victim;

(c) one cannot point to any particular assailant and say that

he struck the fatal blow;

(a)

if one looks at the situation of some of the accused, taking into account age, upbringing and position in society and the role of each in the organisation, commutation of their sentences might seem appropriate, in which case it would probably be right to commute the sentences of all the accused rather than single out one or some of them to suffer death.

The conduct of the victims that led to the beatings does not of course justify the beatings or excuse the murder. Nevertheless the circumstances of the crime are not such that there would be great public sympathy for the deceased in spite of the brutality with which he was treated. In this respect, the case differs from those of Tsoi and Liu, where the victims had behaved with propriety and indeed with courage in attempting to apprehend armed robbers.

6. In all circumstances, therefore, it seems to me that the Governor may feel that, although the conviction for murder was fully justified, this is not a case in which the law should take its course, and that commutation of sentence would be appropriate.

A.R.R.

A R Rushford Deputy Legal Adviser

15 March 1974