TNAG-0554-FCO40-649-Review-of-death-sentence-in-Hong-Kong-1975 — Page 161

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It was contended on behalf of the applicants that this definition

was insufficient because there might have been an agreement to

cause grievous bodily harm without weapons and that that would not have justified a verdict of murder when the death was caused

with a weapon.

The argument seems to be that this would amount

to a substantial departure from the common design, since the

risk of death was greater when weapons were used.

Counsel was

unable to cite any authority for such a distinction and was forced

to concede that the same distinction could not be drawn where,

although the common design was to cause grievous bodily harm with a particular weapon, death was caused by a different kind of weapon.

We see no justification in principle for drawing this distinction,

which might lead to questions of degree of such nicety that a

most undesirable element of uncertainty would be introduced into

the law even if in practice it were possible to determine the

nature of the common intent with such precision. We think the

learned judge correctly defined manslaughter. The Applicants relied

upon a dictum in Reg. v. Turner (1864) 4 Fost. & Fin. 339, 341

but, whatever may have been the position in 1864,we do not think

that assists them. Nor do we find any support for counsel's

contention in YU Sum-kwan v. Reg. (1956) H.K.L.R. 353.

The judge proceeded to expound his definition of

manslaughter by discussing the possibility of a struggle and then,

in the other passage cited, he sought to explain how, on the evidence, a verdict of manslaughter was not really open except

on the basis of a struggle and he suggested that the second Applicant's

case was inconsistent with the evidence. We think he was right. The number of wounds on the body of the Decensed was explicable on no other basis if the jury rejected the allegation of malice

aforethought: it was inconceivable that the death resulted from

the Applicants having by mischance struck the Deceased the fatal

blows although intending merely to frighten him or to cause him some injury less than grievous bodily harm unless there was a struggle. Of course, if the second Applicant's evidence that the Deceased was trussed on a bed but unhurt when he left the bedroom

had been believed, even the possibility of a struggle was ruled out, but the learned judge properly left the matter to the jury.

Counsel for the applicants has submitted that a substantial part of the evidence against the Applicants was that of accomplices and that a careful warning should have been given to the jury about