TNAG-0554-FCO40-649-Review-of-death-sentence-in-Hong-Kong-1975 — Page 160

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The only other circumstances in which a ve dict of manslaughter would be open on the evidence would be in the following circumstances: If you are satisfied that the three accused were present and actively participating and sharing in the common design, that common design being to rob and/ or to assault the deceased short of causing him grievous bodily harm, and if you accept the evidence of the 2nd accused that when he left the bedroom the deceased was lying on the bed tied hand and foot and gagged and unhurt, and if you find the docensed met his death through the unlawful use by the 3rd and/or the 4th accused of such weapons as you find wore in his or their possession, and that the use of such we pons was used within the common design, that common design being to do something which did not include at least grievous bodily harm to the deceased, then again all the three accused would be guilty of murder of manslaughter, I am sorry".

Counsel replies that the passage is too vague and, indeed, meaningless. It could have been phrased with greater clarity and might be said, standing alone, to give a false impression as to the burden of proof, but it is only part of the direction on the crime of manslaughter: the learned judge had previously given a definition in these terms:

"Now, 'manslaughter' is the unlawful killing of a human being without any intention to kill or to cause grievous bodily harm. If a person unlawfully uses a weapon with the intention of threatening or frightening another or to cause some injury short of grievous bodily harm and death ensues as a result, then all the persons present, actively participating and sharing in that intention would be guilty of manslaughter. Thus if you are satisfied that the 2nd accused and the 3rd and/or the 4th accused and/or with another or others not in custody were present in the premises in question at the relevant time and that one or more of this group was armed with weapons and that the weapons, in the contemplation of the group at that time, would or even might be used in the execution of the common design, that common design being to rob and/or to assault the deceased, short of killing him or causing him grievous bodily harm and the deceased met his death during a struggle, then you will find the 2nd accused and such other accused as you find to have been prescnt, actively participating and sharing in that common design not guilty of murder but guilty of manslaughter."