LI YUNG KWAI v. THE QUEEN

CACC000192/1981

 

IN THE COURT OF APPEAL
	1981, No. 192
	(Criminal)

 

BETWEEN
	LI YUNG KWAI	Appellant
	and
	THE QUEEN	Respondent

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Coram: Sir Alan Huggins, V.-P., Zimmern and Penlington, JJ.

Date of Judgment: 9th July 1981.

 

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. The Appellant appeals to this Court against his conviction on a charge of murder. Application was made to the single judge who in fact gave leave, but it is by no means certain that leave was necessary, since the two points which have in fact been argued are pure questions of law.

2. There were originally three grounds of appeal, but the third has not been pursued, and we think rightly. The first ground alleges a misdirection as to the intention which has to be proved on a charge of murder. The learned Judge gave no less than seven directions as to intent which are accepted to be completely unobjectionable. There was, however, one passage in his directions which is criticised, where he said:

"So your task is to decide whether, in the light of all the evidence, he intended or foresaw that his actions would cause death or serious injury to the other person, drawing whatever inferences you think proper from the evidence."

It is those two words I have emphasized to which objection is taken. It is suggested that one could properly read into that passage after the word "would" the word "possibly" as well as the word "probably" or "certainly". In our view this passage is quite unexceptionable. It may be unfortunate that the learned Judge used any reference to foreseeability because it was unnecessary and has in the event enabled some argument to be based upon its use but, if the Appellant foresaw that his action would cause death or serious injury and proceeded voluntarily to commit those acts, then common sense requires that he must have intended those consequences and that is enough to justify the words used by the Judge. He never said that it was enough if the Appellant's actions would possibly cause death. Had he said that there would have been substance in the argument. Even then it may well be that seven correct directions, including two at the end of the Judge's first summing up and then at the end of his additional directions to the jury, would have been sufficient to counteract any misdirection, but in our view there was no misdirection at all in this passage.

3. Secondly, objection is taken to the Judge's definition of a reasonable man for the purposes of provocation. What the Judge did was to adopt the first part of the words of Lord Diplock in The Director of Public Prosecution v Camplin (1978) 67 Cr. App. R. 14 and to say that the reasonable man referred to is "a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused". It is accepted that in so far as the Judge went he was correct. Lord Diplock however went on to say:

"... but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him."

Those words were not reproduced by the trial judge in this case. What Lord Diplock had in mind was the type of case to which I referred in the course of the argument, where a person accused, who had first been struck by the deceased on the face, was suffering from a bail on the face, with the result that the blow which he received caused him far greater pain than anybody without a boil would have felt: or, again, where somebody accused suffered from warts on the face and something was said which would annoy a person who actually suffered from warts more than somebody who did not. Yet the third case is where the accused suffered from impotency and something was said which might tend to cause greater provocation to an impotent man than to a man who was not impotent.

4. In the present case the only characteristics which are said to be relevant and which might, in the words of Lord Diplock, "have affected the gravity of the provocation to him" were that he was a simple man without sophistication, a man who had lived alone for many years and would have been jealous of his privacy in the only corner of the world he could call his own. We do not consider that was the sort of characteristic to which Lord Diplock was referring. Even if that be wrong and there was here a misdirection or a non-direction, we think that quite clearly this was not a misdirection or non-direction which could have affected the verdict of the jury and we would, in those circumstances, apply the proviso.

5. In all the circumstances we think there was no ground upon which we could interfere with this conviction and the appeal is dismissed.

 

9th July 1981.

 

Representation: