TNAG-0488-FCO40-553-Review-of-death-sentence-in-Hong-Kong-1974 — Page 64

2.

The contention advanced before this Court is that the

learned judge failed to make it clear to the jury that if the fatal blows were struck by the Appellant it was still open to them to find him not guilty of murder but guilty of manslaughter. On the evidence it is questionable whether it was open to the jury to return such a verdict, for it could only have been on the basis that when he struck the blows he intended to do something less than grievous bodily harm. Despite the argument of counsel that the medical evidence would have justified such a finding

we have grave doubts whether it would. Nevertheless we are

prepared for the purposes of this appeal to assume that a manslaughter verdict was open.

Having directed the jury as to malice aforethought

the learned judge continued:

"Any unlawful killing is an offence - a criminal offence. Where it is coupled with the intention to which I have referred earlier, it is murder. Where it is not coupled with such an intention, then it is the offence of manslaughter. For example, if people engage in a fight and in the fight one of the persons is killed, that is manslaughter unless the person who killed had the intention which I mentioned, but in a normal fight where there is no intention to kill or to do really serious injury, the offence would be manslaughter. If persons decide to beat up another person without the intention to which I have referred, that, too, would be manslaughter."

It is not suggested that that was wrong or that it did not sufficiently explain the offence of manslaughter. What is said is that the jury might have been confused by later parts of the summing-up to such an extent that this direction was rendered nugatory, particularly as the judge did not expressly say that the Appellant might be guilty of no more then manslaughter even though he struck the fatal blows. Mr. Bernacchi submits that the general impression riven by the summing-up was that if the jury were satisfied that the Appellant struck the fatal blows their verdict must be Guilty (of murder) and that if they were not so satisfied the proper verdict was Not guilty of murder but guilty of manslaughter. The pass-gos alleged to have misled the jury

:

related to the position if they were, in doubt whether the Appellant struck the fatal blows but found that he had a common intent with

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