HKSAR v. LO LAI CHAU

CACC 191/2022

[2025] HKCA 187

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 191 OF 2022

(ON APPEAL FROM HCCC NO 140 OF 2021)

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REASONS FOR JUDGMENT

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The Court:

1.  The applicant was charged with the murder of Zhou Shiqing (the deceased or Ah Lung), on 18 October 2019, in Hong Kong, contrary to common law and punishable under s.2 of the Offences against the Person Ordinance (Cap 212). On 14 October 2022, the applicant pleaded not guilty to murder but guilty to manslaughter upon his formal arraignment; however, his guilty plea was not accepted by the prosecution. Accordingly, he stood trial before Barnes J (the Judge) and a jury.[1] On 27 October 2022, he was found guilty of murder by unanimous verdict of the nine member jury and sentenced to mandatory life imprisonment.

2.  On 4 November 2022, the applicant filed a notice of application for leave to appeal against conviction, which was refused by a Single Judge on 21 March 2024.[2] On 26 March 2024, the applicant filed a notice seeking to renew the leave application. For both applications, the applicant was granted legal aid and represented by Mr James Sherry who was also the applicant’s trial counsel. Mr Sherry, for the applicant, only seeks to renew Grounds 1 and 2 out of the original four grounds of appeal.[3]

3.  The respondent is represented by Mr Michael Wong and Mr Lucas Lai, who oppose the granting of leave to appeal.

4.  At the conclusion of the hearing, we refused the applicant’s renewed leave application against conviction and dismissed his appeal. We said we would hand down our reasons in due course, which we now do.

The prosecution case

5.  The killing of the deceased took place on 18 October 2019 at Shop B6 on the mezzanine floor of Kin On Building, 77-81 Yuen Long On Lok Road, Yuen Long, New Territories, that had been established and operated by Ms Liu Chunjuan (known as Ah Kuen) as a place for people to play mahjong (referred to as the mahjong place at trial). There were two mahjong tables in the premises. The applicant and Ah Kuen came to know each other in 2017 and eventually formed a relationship. The deceased knew both of them and he also formed a relationship with Ah Kuen.[4]

6.  On the day in question, the applicant arrived at the mahjong place at about 10:30 am and was there for the rest of the day. Ah Kuen had not attended the mahjong place that day.[5] The deceased arrived in the afternoon and invited the applicant to play mahjong as there was an empty mahjong table. The applicant declined the invitation. Sometime after 3:00 pm, the deceased sat down and started to play mahjong with Mr Tam Wing Yin (PW1), Mr Choi Chi Man (PW3), and another male nicknamed Chu Yuk Lo (who was not a witness).[6] There were four other persons, playing mahjong at the other table, Choi Chi Chun (PW2), Lee Ki Choi (PW4), Yang Rijuan (PW5) and Lu Chih Ming (PW7).[7]

7.  It was the prosecution’s case that soon after the deceased commenced playing mahjong, the applicant suddenly chopped the deceased near his neck from behind. There was no quarrel or argument between them before the chopping. The deceased stood up and ran to the air-conditioning area, but the applicant chased after him and continued to chop him. The deceased used his bare hands to protect himself and ward off the blows, sustaining defensive injuries, including cut wounds to his arms and the severance of two of his fingers.[8]

8.  PW1 was playing at the same table with the deceased. He saw the deceased suddenly jump up with the applicant holding a chopper behind the deceased. There was blood on the deceased’s neck. The deceased ran towards the kitchen, and the applicant chased after him.[9]

9.  PW2 was playing at the other table, which was closer to the area of the air-conditioning. He suddenly saw the deceased had gone to his side. The applicant, holding a chopper, came over and chopped the deceased on the head and the shoulder area. He described the applicant’s action as a “raise of the arm down with the blow”. The deceased used his arms to ward off the blow, telling the applicant, “Don’t come any further”. PW2’s evidence was unchallenged by the defence.[10]

10.  PW3 was playing at the same table with the deceased. The deceased suddenly shouted “Aiya” and stood up. He saw the deceased was bleeding from the area at the neck and the shoulder. The applicant was holding a chopper standing behind the deceased on the side. He said the applicant was “waving” the chopper, which he demonstrated by “pointing directly in front of him”.[11]

11.  PW4 was playing at the other table. He had his back to the deceased. When he first noticed the deceased, he was already in the area under the air-conditioning. He saw the deceased covering his head. He originally said he heard the deceased saying “Don’t come any further”, but accepted that on this matter, he had made a mistake after he was shown his witness statement. He said that the applicant was facing the deceased at the time, who chopped down once towards the deceased’s head.[12]

12.  PW5 was coming out of the washroom at the time of the incident. She saw the people playing mahjong running away and the applicant chopping the deceased. The deceased was sitting in the area under the air-conditioning, protecting his head with his hands, and the applicant was chopping at the deceased’s left side under the elbow. PW5’s evidence was that she only saw the applicant administer one or two chopping actions on the deceased before she ran away.[13] However, it was put to her in cross-examination whether the two men were “actually fighting together” and she agreed.[14] This was clarified as she had previously been asked if she saw the deceased also fighting back against the applicant, to which she said, “No, just protecting his head with both of his hands.”[15] In re-examination, she explained that when she agreed there was some sort of resistance, she felt that the deceased was retaliating by “trying to ward off with his hand or arm and with this gesture like this” (pushing away). She said there was no other action.[16]

13.  PW7 had previously played at the other table and was standing between the two tables watching people play mahjong. He suddenly heard the deceased yell out. He turned to look at the deceased, who had jumped or leaped up. He saw the applicant behind the deceased chopping the deceased’s head. He saw two to three chops. He did not hear any argument. He left immediately but saw the deceased either walk or stumble two to three steps towards the area of the air-conditioning.[17]

14.  As a result of the chopping, the deceased sustained, amongst other numerous injuries, six wounds on the head, with three through the bone and the other three partially through the bone.[18] The forensic pathologist, Dr Mok Ka Kin (PW8), said that in order to cut through bone with a chopper, the force had to be significant.[19] There were also injuries on the deceased’s arms and the back of his hands, as well as the amputation of two fingers, which Dr Mok said were consistent with defensive injuries, meaning that the deceased was trying to protect himself from being attacked.[20]

15.  After chopping the deceased, the applicant made two calls to the police. He called the 999 Police Report Centre. He said during the first call, “I stated clearly that I would chop you to death.” [21] The operator thought the applicant was talking to her and hung up. The applicant called 999 again and said, amongst other things, “I chopped him [the deceased] several times.” [22]

16.  The applicant then went downstairs and walked around outside. The audio recording of the CCTV in a nearby shop captured the following comments by the applicant:[23]

“1. A: Okay – okay. Okay, I will ‘Ta’ (transliteration) [Indistinct]. Literally said (I) was going to chop him to death.

2. A: I literally said (I) was going to chop him to death(,) said [Indistinct]…

3. A: I want to just go away (sic). (I)’m prepared to go to jail. I……? [Indistinct] I’m definitely going to jail. [Indistinct] I chopped him. I called the police. I said (I) was going up to chop him to death. [Indistinct] Motherfucker. Yea. [Male voice: The phone…] Yes, I called the police. I literally said (I) was going to chop him to death. I literally said (I) was going to chop him to death. Motherfucker. That 50 dollars, has been dragged on for years. [Indistinct] I literally said (I) was going to chop him to death. (I) chopped him to death once (I) went up (there). Thought I was kidding, motherfucker. (I) literally said once [Indistinct].

4. A: [Indistinct] I’m not going – I’m not going yet. I-I’m not going. Right.

5. A: None of your business. Motherfucker. Motherfuck … got it…motherfucker. (Even) one [Indistinct] motherfuck …”

17.  It was an admitted fact that at 4:08 pm on 18 October 2019, a police officer (PC 6330) cautioned the applicant who answered him voluntarily as follows:[24]

“PC 6330:	頭先發生咩事？ (What happened a moment ago?)
The defendant:	我頭先用菜刀斬左阿龍幾刀。 (I slashed ‘Ah Lung’ a few times with a chopper a moment ago.)
PC 6330:	你因乜事斬阿龍？ (Why did you slash ‘Ah Lung’?)
The defendant:	因為佢之前想追我女朋友，曾經嘈過交，我今日見返佢，愈諗愈嬲，所以係洗手盤到拎菜刀斬佢，之後我平靜返就報警。 (Because he wanted to pursue my girlfriend before. We had an argument before. I got even angrier when I saw him again today. So I picked up the chopper in the sink and slashed him. I calmed down afterwards and called the police.)”

18.  It was also an admitted fact that at 4:10 pm, PC 6330 cautioned the applicant for wounding, who voluntarily said in reply: “I slashed him because I was too angry.” [25]

19.  The applicant was arrested and cautioned. In a subsequent video recorded interview, the applicant said, amongst other things, that he chopped the deceased once on his neck and then a few times on his head while the deceased was sitting at the mahjong table with his back towards him. The deceased rushed over to the air conditioner, and the applicant chopped him two more times. The deceased had covered his head with his hands. The applicant saw the deceased sitting there bleeding and stopped.[26]

20.  The deceased was dead upon arrival at the hospital.[27] The autopsy confirmed the cause of his death to be “multiple chop and cut wounds”.[28]

The defence case

21.  The applicant did not dispute he had killed the deceased. On his arraignment, the applicant pleaded not guilty to the charge of murder. However, he pleaded guilty to manslaughter, which was not accepted by the prosecution.[29] The defence case was that the applicant lost control due to assaults that he had suffered from the deceased on three previous incidents and the way the deceased spoke to him just before the chopping.[30]

Incident 1

22.  The first incident occurred on a day the applicant said was in 2018 or 2019. He was in the street when the deceased came from behind, and grabbed and squeezed his neck so that he could hardly breathe. The deceased told him, “You have been gossiping about me and Ah Kuen”. He did not report the matter to the police.[31]

Incident 2

23.  The second incident occurred in the evening at the mahjong place which the applicant said was also in 2018 or 2019. He was with Ah Kuen, when the deceased pointed a knife at the applicant’s throat, demanding $6,000. The applicant said, “have no money”, and the deceased said, “If you don’t give me money now I will stab you to death”. In the end, the applicant borrowed $2,300 from Ah Kuen and paid the deceased $3,000. He paid the rest of the money later the same day. He did not report the matter to the police.[32]

Incident 3

24.  The third incident occurred on 17 July 2019. The applicant was at the mahjong place, when the deceased suddenly arrived, accusing him of forcing Ah Kuen to go to Macau to gamble. The deceased used an iron rod to poke his chest and hit his head. This time, the applicant made a report to the police, but because his telephone had been snatched away by the deceased, he had to use a public telephone. He told the attending police officer that the deceased hit him with a metal rod, but he did not pursue the matter because the officer persuaded him to drop his complaint. However, his evidence about reporting the matter was contradicted by the police officer, who testified that the applicant made no mention of being hit with a metal rod and only complained that his telephone had been snatched from him.[33]

The day of the offence

25.  On 18 October 2019, before the chopping, the applicant was at the mahjong place and the deceased invited him to play mahjong. The applicant said, “No, I’m not playing. I have no money.” The deceased said, “I will give you $2,000. I will lend you $2,000 to play”. The applicant refused. He felt the deceased was provoking him because the deceased had not repaid $80,000 he owed Ah Kuen, “and he offered me $2,000 to play mahjong when I already said that I don’t want to play and I have no money”, and because the deceased said to him, “You are the boss.”[34] However, the applicant admitted that the deceased was friendly on the day.[35]

26.  The applicant said that he had reached the limit of his “bottom line”. His temper flared up, so he decided to teach the deceased a lesson. He grabbed the chopper in the kitchen and chopped the deceased, who was sitting playing mahjong, from behind on the shoulder near the neck.[36] The deceased stood up, turned around and punched the applicant on the lower jaw, causing his teeth to loosen, one of which fell out the next day.[37] The deceased tried to grab the chopper from the applicant. They were waving the chopper and that was how the deceased’s arms got chopped. They were not defensive injuries and the applicant did not mean to chop the deceased on the arms. He said: [38]

“And when he was trying to snatch the chopper from me, there was a struggle between the two of us and the injury on his arms were all caused by the time of the struggle when the knife was waving around and those cuts were caused.”

27.  The applicant agreed that he had not mentioned there had been a struggle for the chopper in his video recorded interview.[39] He also agreed he had no hand or arm injuries or cut injuries at all.[40] On his account, the deceased did not get hold of the chopper and the applicant managed to get the chopper free from him. He said this caused his temper to flare up further and that was when he chopped the deceased’s head. He explained that his mind went blank at the time. He said he was confused and did not know what he was doing, “I just chopped and chopped and chopped”. He said that the deceased was standing throughout this time and accepted that he was close to the air-conditioner.[41] He saw the deceased was bleeding and stopped. He then realised, “Oh dear, he is bleeding. I don’t want him to die”. He washed his face to clear his mind and called the police. He did not remember saying the words as captured by the CCTV.[42]

28.  As pointed out by the Judge, the defence was twofold. First, at the time of chopping, his mind was blank. He was confused and did not know what he was doing so he did not have any murderous intent. Alternatively, he suffered a sudden and temporary loss of self-control because of the cumulative effect of the three prior incidents and the “last straw” of the events that happened before the chopping, which provoked him.[43]

The grounds of appeal

29.  Mr Sherry advances two grounds of appeal. Ground 1 complains that the Judge did not give a proper direction on the meaning of “unlawful”. Ground 2 contends that the Judge erred in failing to give a direction on self defence.

30.  We will set out the arguments for and against the two grounds and then discuss them together since they are interrelated.

Ground 1: Misdirection on unlawful killing

31.  By Ground 1, Mr Sherry contends that the Judge misdirected the jury on what was meant by “unlawful”, in that she failed to direct them that it was for the prosecution first to prove the killing was without legal justification or excuse. He submits that in the absence of a direction that the onus of proof was always on the prosecution, there was a risk that the jury may have become confused or incorrectly believed there was an onus on the applicant to prove that the killing was lawful.

32.  Mr Sherry complains that the Judge by her direction, instructed the jury that they should have no problem in finding this ingredient proved, when the jury had to be directed that they must be satisfied for themselves that the prosecution had proved the ingredient to the requisite standard. He accepts that when the Judge initially directed the jury on the burden of proof, she correctly stated that the burden of proving each ingredient of the offence was on the prosecution, however, in her subsequent directions on the ingredient of “unlawful”, she stated the following:

“Murder is committed when a person unlawfully kills another person, …”[44]

“So the second ingredient that the killing was unlawful, unlawful means the killing had no legal justification. Now, to give you an example, if a patient, after giving consent to a doctor to have an operation and unfortunately died on the operation table, the doctor did not murder him. The legal justification is it is just unfortunate that he died in the operation. So it had to be unlawful. There is nothing in this case that the Defendant said, ‘I am entitled. I have legal justification to kill the deceased, Ah Lung’, no. So again, on the basis of the evidence presented before you, you should have no difficulty in finding the second ingredient had also been proved. So, the Defendant unlawfully killed Ah Lung.”[45]

“The second ingredient was the killing unlawful. I have again already reminded you there was no suggestion that the Defendant had any legal justification. So this one, again, you should have no difficulty in finding it is proved.”[46]

33.  Mr Sherry contends that when the Judge stated that the applicant had no legal justification to kill the deceased, this was a material misdirection and an error of law. He submits that the Judge overlooked the applicant’s evidence that he “struggled or fought with the deceased because he believed he had to defend himself.”[47] He further submits that the Judge incorrectly suggested that it was for the applicant “to say something and prove that he was justified in the killing to show that it was ‘not’ unlawful.”[48] He extrapolates that this left the jury with the impression that the applicant bore the burden of explaining why the killing occurred and proving that it was lawful.[49]

34.  Mr Wong submits that the Judge’s directions on the second ingredient were perfectly clear and would not have confused the jury. He submits that the Judge correctly and adequately directed the jury on the burden of proof and the elements of the offence, including the ingredient of “unlawful killing”.[50] He further submits that the Judge’s remark, “there was no suggestion that the defendant has any legal justification”, accurately reflected the state of evidence and was neither misleading nor confusing. He argues that the applicant, by his guilty plea to manslaughter, was in effect, accepting that the killing was unlawful. He also argues that the applicant’s contention that the killing might have been lawful due to self defence was untenable, as there was no evidential basis to advance this defence.

Ground 2: No direction on self defence

35.  By Ground 2, Mr Sherry submits that the applicant testified that he “struggled or fought” with the deceased during the attack. Hence, there was an evidential basis for the jury to infer that during the struggle, in which the applicant believed the deceased might chop him to death, he was or might have been defending himself.[51] The defence raised the issue of self defence with the Judge, notwithstanding it had been rejected by her as the basis for an alternative verdict.[52] In these circumstances, Mr Sherry argues that there was a material irregularity in the Judge’s summing-up in failing to direct the jury on self defence: DPP v Leary Walker[53]; Kissel v HKSAR[54]; Burns v HM Advocate[55]. [56]

36.  Mr Wong submits that the applicant by pleading guilty to manslaughter, relinquished any claim to the lawfulness of his actions, thereby precluding the plea of self defence: HKSAR v Liu Sun Kong[57]. He emphasises that the applicant never relied on the complete defence of self defence, but only on the partial defences of provocation and unlawful and dangerous act manslaughter. No relevant questions were put to any prosecution witnesses concerning self defence.[58]

37.  Mr Wong further submits that the evidence did not support a claim of self defence.[59] No prosecution witness observed the deceased punching the applicant or struggling for the chopper as suggested by the applicant. Expert evidence was that the wounds on the deceased’s arms were defensive injuries. The applicant’s account in his admitted video recorded interview was largely consistent with the prosecution evidence. There was a clear disparity between the injuries sustained by the deceased and those suffered by the applicant. Furthermore, the applicant never testified that he chopped the deceased to defend himself, nor did he claim that there was a prolonged fight between them. His evidence on the “struggle” was intended to refute the suggestion that the deceased’s injuries to his arms were defensive wounds, in support of his defence of “no murderous intent” and “provocation”.[60] His testimony indicated that he was not only the initial aggressor but also the aggressor throughout. In any event, the deceased’s struggle was neither so disproportionate to the applicant’s chopping, nor was the applicant’s continued chopping after the struggle ended more than necessary to protect himself: Burns v HM Advocate[61].

38.  Mr Wong refers to the following passage in DPP v Walker to suggest that Mr Sherry must have considered self defence to be of no practical utility, otherwise, it would have been part of the defence case:[62]

“There might be a case in which provocation is relied upon but not self-defence although there is evidence from which self-defence could possibly be inferred. This however is hardly more than a theoretical possibility because if there were even only the slimmest chance of self-defence succeeding, it is difficult to imagine any reason why counsel for the accused should fail to raise it and elect to rely solely on provocation. In the present case, for instance, had self-defence been considered to be a practical possibility, there could have been no reason for not raising it. It could not have conflicted with the defences of automatism or diminished responsibility any more than the defence of provocation which was in fact raised. The experienced counsel for the respondent discarded self-defence no doubt because they realised that such a defence had no chance of succeeding.

…

If, as in the present case, (a) the accused has not relied on self-defence and (b) the evidence is consistent only with the force used being far greater than could conceivably have been necessary, no appeal can succeed on the ground that the judge has not left self-defence to the jury. The judge would be quite wrong to do so because any verdict of manslaughter on the ground of self-defence would be perverse; there would be nothing to support it.”

39.  Mr Wong notes that the issue of self defence was raised and discussed at the close of the trial.[63] Having considered the arguments of the parties, the Judge gave a reasoned decision for not directing the jury on self defence.[64]

Discussion

40.  We do not consider there is any merit in these two grounds of appeal, which rest on whether the applicant was deprived of the chance of having the jury consider that he acted in self defence in killing the deceased. In our view, there was no proper evidential basis for a self defence direction to be given to the jury.

41.  Immediately after he had repeatedly chopped the deceased to the head, the applicant went downstairs and telephoned the police stating that he said he would chop the “motherfucker” to death, and he did chop him to death. He made it clear that he was out to get the deceased and kill him. To suggest that the applicant acted in self defence in the circumstances is devoid of reality. When the applicant was arrested and cautioned, he said that he was angry when he saw him because of a dispute over his girlfriend, and he “picked up the chopper in the sink and slashed him.” There was no mention that he acted out of self defence to protect himself.

42.  Before we turn to consider the grounds in greater detail, it is appropriate to briefly discuss the elements of the offence of murder and the principles regarding self defence. The offence of murder is committed when a person unlawfully kills another and, at the time of doing so, intends either to kill or to cause that other person grievous bodily harm.[65] Normally, where a person uses deliberate violence toward another and injures or kills that person, he acts unlawfully. However, where a person is attacked, or believes that he is about to be attacked he may use such force as is reasonably necessary to defend himself. When relying on self defence in answering a charge of murder, the question is whether the amount of force used was objectively reasonable in the circumstances as the accused genuinely believed or may have genuinely believed was necessary to defend himself: R v Man Wai Keung[66]. The burden is on the prosecution to show to the requisite standard that he was not acting in lawful self defence. If the force used is out of proportion to the nature of the attack, or if it is in excess of what is really required of the accused to defend himself, it is unreasonable and unlawful: R v Martin[67].

43.  The procedural history of this case is instructive concerning the conduct of the defence case at trial, particularly whether self defence was relied upon by the applicant. In the case management hearing before the trial, Mr Sherry mentioned that self defence may be advanced but this was later abandoned by the applicant.[68] This was evident by the fact that before the empanelment of the jury, the applicant was arraigned and he entered a plea of not guilty to murder but guilty to the offence of manslaughter. However, the prosecution did not accept the guilty plea to manslaughter. The defence position, as indicated by Mr Sherry, was that the applicant would rely on the partial defence of provocation. During the trial, no mention was made that the applicant relied on self defence, nor were witnesses cross-examined on the matter.

44.  After the close of the defence case, the Judge discussed with counsel the legal directions to be given to the jury. Mr Sherry confirmed that the defence was suggesting both unlawful act manslaughter and provocation. When the Judge briefly stated the evidence, Mr Sherry added that despite the applicant inflicting the first blow, there was an alleged punch to the applicant’s mouth, loosening his teeth, and a struggle. The Judge queried whether he was suggesting self defence, and Mr Sherry responded, “it has sort of come up now.”[69] The Judge pointed out that the applicant in his evidence did not say that he had to protect himself but was trying to explain the defensive injuries to the deceased’s hands and arms. She went on to note that the applicant had stated that he did not know what he was doing and just chopped the deceased. Mr Sherry in reply said that he understood and agreed with the Judge’s view of the applicant’s evidence. However, he explained that he thought the matter should be “raised and ventilated”.[70] When the Judge put to him whether he was suggesting that the applicant’s evidence amounted to self defence, he said he was just raising the issue because of the evidence from the applicant about being punched in the mouth and the melee, “to raise it and ventilate it to see if there really needs to be a direction or not, and it seems that you are not with me. It’s not necessary …”.[71]

45.  The Judge told Mr Sherry that he had to convince her if he thought a direction on self defence should be given. There was further discussion about the evidence, after which the Judge refused to give a self defence direction to the jury, and Mr Sherry acknowledged he understood.[72] The Judge reminded Mr Sherry not to bring up the issue of self defence before the jury, which he accepted, adding, “Well, that’s why I wanted to ventilate it now. So this is the time.”[73]

46.  Mr Sherry submits before us that although he agreed with the Judge that nothing should be said to the jury which might unnecessarily confuse them, he nevertheless did not abandon the point of self defence.[74]

47.  The case was adjourned for closing addresses the next day. Mr Sherry had stated to us that he did not pursue the issue of self defence because the Judge was adamant that self defence did not arise and he was bound by her decision.

48.  In his closing address, Mr Sherry mentioned to the jury for the first time that the applicant had pleaded guilty to manslaughter. In his concluding remarks, he told the jury that the applicant was not guilty of murder because the requirement of murderous intent was not present, adding, “You should find him guilty of manslaughter only for which he has already pleaded guilty.”[75]

49.  In the absence of the jury, the Judge asked Mr Sherry why he had told the jury in his closing address that the applicant had pleaded guilty to manslaughter, when this had not been previously mentioned. In response, Mr Sherry said that he thought the Judge had mentioned it in her opening remarks. She told him, she had not.[76] He then informed the Judge that there had been correspondence that the applicant’s guilty plea to manslaughter would be made known to the jury. He added that it was “out there”.[77]

50.  It would appear that Mr Sherry mentioning to the jury in his closing address that the applicant had pleaded guilty to manslaughter had nothing to do with the Judge’s ruling not to give a self defence direction but an acceptance that the killing was unlawful and the applicant deserved a conviction for manslaughter only. This was a serious omission on Mr Sherry’s part in his submissions before this Court, which was particularly relevant to his argument regarding a plea of self defence.

51.  The Judge also raised with Mr Sherry what was the evidential foundation for his comment that the deceased was aggressive on the day of the incident.[78] The Judge noted that there was no evidence from the prosecution witnesses that the deceased was aggressive on that day, nor had the applicant stated that the deceased was aggressive.[79] After he reviewed the evidence overnight, Mr Sherry confirmed with the Judge the next day that there was no evidence from the prosecution witnesses that the deceased was aggressive. The Judge explained to Mr Sherry that she would inform the jury to that effect in her summing-up and he raised no objection.[80]

52.  The Judge summarised the applicant’s evidence regarding the punch and the struggle in the context of whether the deceased’s injuries were due to a fight over the chopper or defensive injuries. The Judge said:[81]

“So it is for you to decide, after considering all the evidence including the injuries sustained by Ah Lung, suffered by Ah Lung, as shown in the autopsy report and the photographs. I will not go through the report. You have both English and Chinese to help you so you can see all those injuries, and also the evidence, the opinion of Dr Mok, and you see how many blows were struck. Are we talking about one blow or more than one? You decide that.

Did Ah Lung punch back or not, because only the defendant said it, I have already mentioned. None of the prosecution witnesses who saw the hitting, some of them, up to the time when Ah Lung had already got into the air-con area there was nothing about Ah Lung punching or fighting over the chopper at all, so it is a matter for you. Was there a struggle between Ah Lung and the defendant over the chopper as described by the defendant, a matter for you? How did Ah Lung sustain those wounds on his arms, as described by the defendant fighting over the chopper so got wounded or defensive wounds as described by some of the witnesses which is also the opinion of Dr Mok? It is a matter for you.”

Ground 2

53.  Mr Sherry submits that the applicant testified that he “struggled or fought” with the deceased during the attack, and in the circumstances, there was a material irregularity in the Judge’s summing-up in failing to direct the jury on self defence.[82] The applicant testified that the deceased punched him once and tried to snatch his chopper which resulted in the chopper being waved around, causing the wounds to the deceased’s arms. The applicant then chopped the deceased two to three times. The evidence does not support Mr Sherry’s submission that the applicant “defended himself against a further attack from the deceased” or that there had been a “prolonged fight” between them.[83]

54.  It is apparent from the applicant’s evidence that when he said that he had been punched by the deceased and there was a struggle between them, he was seeking to refute the notion that the injuries sustained on the deceased’s arms were defensive injuries.[84]

55.  It was an admitted fact that Dr Mok’s autopsy report accurately recorded the autopsy findings of the deceased, which was produced as an exhibit.[85] Dr Mok was not challenged at all in cross-examination about his findings that the injuries to the deceased’s upper limbs were defensive injuries. Dr Mok described the injuries to the deceased’s upper limbs as follows:[86]

“Left upper limb:

12. A shelving cut wound forming a skin flap pointing distally, 12 cm long and 6 cm wide at base, on back of lower left arm cutting into the underlying muscles.

13. A superficial cut wound, 0.7 cm, on front of left elbow.

14. An area of overlapping cut wounds, 12 cm x 5 cm, on back of middle and lower left forearm. The underlying ulna bone was chopped and the ulnar artery was transected.

15. Two adjacent transverse superficial cut wound, 4 cm and 1.5 cm long respectively, on back of lower left forearm.

16. A superficial cut wound, 1.5 cm long, on back of lower left forearm.

17. A superficial cut wound, 2.5 cm long, on back of left hand and the base of left ring finger and left 4^th finger web.

18. A superficial cut wound, 1.5 cm long, on back of proximal phalange of left index finger near the nail bed.

19. Clean-cut amputations of left middle and ring finger at the level of middle phalange.

Right upper limb:

20. A transverse abrasion, 4 cm long, on inner back of middle right arm.

21. A shelving deep cut wound, 7.5 cm long, on front of middle and lower right arm, cutting the underlying bicep muscle.

22. A deep cut wound, 10 cm long, on front and inner aspect of right elbow and right forearm, cutting the underlying brachial artery.

23. A linear abrasion, 1 cm long, on outer back of right wrist.

24. An overlapping chop wound, measured 14 cm and 3.5 cm, on back of right hand, leaving a deep chop wound on the underlying hand bones.

25. A superficial cut wound, 3 cm long, on back of right hand.”

56.  In his report, Dr Mok described the extent and severity of the cutting injuries to the deceased’s upper limbs. Two of the deceased’s fingers on his left hand were amputated and there were other deep and substantial cut wounds to his hands and arms. Dr Mok stated that:[87]

“3. In this case, the cut wounds on both upper limbs had transected the left ulnar artery and right brachial artery. Together with the deep chop words on the head and upper limbs, the amount of blood loss could be potentially fatal.

4. Also, the sharp injuries on the upper limbs were mostly found on back of both arms, back of right elbow, back of both forearms and back of right hand and left fingers. The pattern of distribution was in keeping with being defensive injuries and indicated the deceased was probably conscious at the time of the attack and tried to defense against the attack.”

57.  Dr Mok explained that the cut wounds to the head and upper limbs led to a significant amount of blood loss and that the pattern of the sharp wounds on the upper limbs was in keeping with them being defensive injuries.[88]

58.  It is significant that the witnesses who saw the beginning of the applicant’s attack on the deceased (PW1, PW2, PW3, PW4 and PW7) did not see the deceased punch the applicant or struggle with him, nor was it put to any of them that the deceased had punched the applicant in the mouth, which would have been a necessary and obvious allegation if self defence was being run.[89] Furthermore, the applicant did not describe being punched by or struggling with the deceased in his video recorded interview, which was admitted into evidence on the basis that it was a complete and accurate record of the interview and that the applicant answered all the questions voluntarily.[90] The Judge summarised the difference in the applicant’s evidence to the jury as follows:[91]

“… he said that he hit the deceased once in the neck area then he chopped a few times on the head while Ah Lung was still sitting at the mah-jong table. Then Ah Lung rushed over to where the air-con was and then he chopped Ah Lung two more times and then he saw blood and then he stopped.

So when the defendant saw Ah Lung sitting there bleeding, he stopped. He did not chop him anymore. Now, that is basically counter 278 to 300, so you may want to make a note, but please go through the transcript again to see exactly what he said he did one day after the chopping, as compared to what he said to you in court.

Of course, in court the description is not like that at all. He only chopped the deceased once on the neck or on the shoulder near the neck. The deceased jumped up or stood up, turned round, punched him in the lower jaw causing him to have teeth loosened, one tooth came out the next day, and they had a struggle over the chopper, both waving, and it was under those circumstances that the deceased got chopped on the arms. When he got the chopper back from the deceased he was even more angry, so he chopped his head. The deceased was still standing. Then the deceased went over to the air-conditioner and then he saw blood, he stopped.

Over at the air-conditioner he did not chop the deceased at all. That is what he told you in court, so you have to think and consider yourself which version is correct or neither version, up to you. They cannot both be correct, so compare his evidence with other witnesses. I have already told you no one had seen this. No one had seen any struggle. No one had seen any punching, so it is a matter for you.”

59.  Mr Sherry accepts that the evidence showed that the applicant was the “initial aggressor”, but he suggests that after the applicant’s initial attack on the deceased, the applicant acted in self defence because of the deceased’s aggressive conduct: Burns v HM Advocate. He submits that the applicant was provoked by the deceased and only wanted to chop him once on the shoulder to teach him a lesson.[92] The difficulty with this submission is that not only was the applicant shown to be the “initial aggressor”, but moreover, he was the aggressor throughout this incident, while the deceased displayed no signs of actual aggression. None of the witnesses who were present in the mahjong place said the deceased was aggressive, nor was this proposition put to them by Mr Sherry on behalf of the applicant. The applicant’s evidence that the deceased punched him and struggled over the chopper was not put to any of the witnesses that were present during the incident.

60.  It is untenable to suggest that the deceased’s injuries to his upper limbs were the product of a struggle over the chopper. Such a suggestion was plainly contrary to the evidence. In the circumstances of this case, a plea of self defence was clearly not sustainable in the way the defence case was run and how the evidence unfolded, particularly in the face of the forensic pathologist’s evidence, which was not challenged by the defence.

61.  As submitted by the respondent, self defence never formed part of the applicant’s case, for if it did he would not have pleaded guilty to manslaughter at the outset of the trial. Moreover, no relevant questions on this subject had been asked by defence counsel of the prosecution witnesses.[93]

62.  A critical feature of the applicant’s evidence is that he never said that he chopped the deceased to defend or protect himself.[94] What he said was that the deceased “tried to snatch my chopper, and that caused a further flaring up of my anger and so I chopped him several times more. That’s it.”[95]

63.  As noted by the Judge, a direction on self defence would have been inappropriate in the circumstances of the case and would have only served to confuse the jury.[96] In HKSAR v Chau Yui Ming[97], Ma CJ quoted with approval the following comments of Mustill LJ in R v Fairbanks[98]:

“... the judge is obliged to leave the lesser alternative only if this is necessary in the interests of justice. Such interests will never be served in a situation where the lesser verdict simply does not arise on the way in which the case had been presented to the court: for example if the defence has never sought to deny that the full offence charged has been committed, but challenges that it was committed by the defendant. Again there may be instances where there was at one stage a question which would, if pursued, have left open the possibility of a lesser verdict, but which, in the light of the way the trial has developed, has simply ceased to be a live issue. In these and other situations it would only be harmful to confuse the jury by advising them of the possibility of a verdict which could make no sense.”

64.  As explained by Ma CJ, the critical question in cases involving the possible need to direct the jury on an alternative verdict is whether it is an “obvious” alternative verdict supported by the evidence. He emphasised that the way the defence case is run on the facts is obviously relevant in determining whether there is sufficient evidence in support of an obvious alternative verdict.[99] In the present case, it is clear that a plea of self defence was neither in contemplation nor contention in answer to the charge of murder. Nor was it available on the evidence.

65.  In oral submissions, Mr Sherry relied on the following passage of the applicant’s evidence that he had provided a proper evidential foundation that the applicant acted in self defence. This was in examination-in-chief when he was asked how the deceased sustained the wounds to his arms, which had been described by Dr Mok as defensive injuries. It is appropriate to note that the applicant’s evidence was that the deceased punched him once and “tried” to snatch the chopper.

“Q. Then what happened?

A. And when he was trying to snatch the chopper from me, there was a struggle between the two of us and the injury on his arms were all caused by the time of the struggle when the knife was waving around and those cuts were caused.

COURT: So you are saying that when both of you were fighting over the chopper, that’s when the deceased, Ah Lung, got injury on both his arms, right?

A. Yes, yes, yes. It’s not caused by chopping.

Q. Say that again, please.

INTERPRETER: It’s not caused by chopping.

Q. Just clarify, Mr Lo. You said there was a struggle and you mentioned -- we’ve seen injuries to Mr Ah Lung’s arm. They’re in the photograph album book number 2. I can’t remember the number. Under tab K, photograph 11. I might be in the wrong album.

COURT: Yes. This is K.

MR SHERRY: I’ll just correct that. It is -- it’s still book number 2.

COURT: I think everyone got it. It is tab K.

MR SHERRY: Still tab K...

COURT: Yes.

MR SHERRY: ...I’m pleased to say. Just looking for the right photos.

Q. Photograph 3 and photograph 5. Now, those wounds, are they the wounds which were started during the struggle with Ah Lung?

A. Yes, waving like this.

Q. During the struggle.

A. Yes.

Q. All right, thank you.

A. He try to snatch my chopper.

Q. Right. Okay. Now, Mr Lo, there obviously was a point when you stopped chopping. The struggle was over and you stopped chopping.

A. Yes.

Q. Yes. Now, my question is, what was in your mind -- what caused you to stop chopping?

A. I was afraid either he would chop me to death or I would mistakenly chop him to death. So I stopped.

Q. Okay. Now, you say at counter 302, “Well, he was there covering his head. He was breathing. Well, then I didn’t chop him.” Do you want to elaborate on what you meant by that answer?

A. After I snatch back the chopper, I chop towards his head for two to three times and then he sat down. Seeing his condition like that, I stop chopping him.

Q. All right. Now, you mentioned that he was breathing to the police.

A. Yes.

Q. All right. So what made you think or know he was breathing at that time?

A. So he sat down there and I was really afraid that I would chop him to death.

Q. Yes.”[100]

66.  In cross-examination, the applicant repeated:

“Let me explain. I chop him once on the shoulder and then he turned around. And then he punched me once. Maybe you will say that I didn’t say it in my video interview. That’s what happened. He punched me once. After he punched me once he tried to snatch my chopper. And then the two of us waving around, and that was the time that the knife slashed on those parts of his body. And then after he failed to snatch the knife – snatched the chopper from me, I chop him two or three times, and then he sat down, and right after that I report it to the police.”[101] (Emphasis added)

…

“At that time I wanted to teach him a lesson, but – but he punched me so that all my teeth become loose, so that – and then he tried to snatch my chopper, and that caused a further flaring up of my anger and so I chopped him several times more. That’s it.”[102]

67.  The applicant was taken to his comments after the chopping that he wanted to chop the deceased to death. He said, “I did say that.”[103]

68.  Although it had not previously been relied upon by the applicant, Mr Sherry contended that PW5’s evidence supported the contention that the deceased fought with the applicant. First, PW5 came out of the washroom and saw the encounter when the deceased was in the area of the air conditioning. Secondly, she explained that when she said the deceased “retaliated” she meant he was trying to ward off blows with his hand or arm.[104]

69.  In any view, there was no evidential basis to direct the jury in the present case on self defence. In circumstances similar to the case of DPP v Walker, the Privy Council stressed that in analysing self defence one of its essential elements is that the accused should use no more force than was objectively reasonable in the circumstances as he genuinely believed was reasonably necessary to defend himself or others. In that case, the issue of self defence had not been raised, but the respondent made an unsworn statement that he and his wife had quarrelled in the car about another man. She had rushed out of the car and he had gone after her and pulled her back. While he was trying to get her back into the car, the wife had seized his testicles and, feeling faint and in pain, he picked up a knife and stabbed her eleven times, killing her. The issue was whether self defence should have been left to the jury.

70.  The Privy Council held that since the force used by the respondent was far greater than could have been necessary to defend himself, his statement did not disclose that he had acted in self defence and, since the issue of self defence had neither been raised by the defence during the trial nor was there any evidence to support it, the judge was right not to leave that issue to the jury. The Privy Council stated:[105]

“If, as in the present case, (a) the accused has not relied on self-defence and (b) the evidence is consistent only with the force used being far greater than could conceivably have been necessary, no appeal can succeed on the ground that the judge has not left self-defence to the jury. The judge would be quite wrong to do so because any verdict of manslaughter on the ground of self-defence would be perverse; there would be nothing to support it.”

71.  Not in dissimilar circumstances to Walker’s case, the alleged punch and struggle over the chopper by the deceased after the applicant had chopped him from behind, followed by the applicant inflicting a series of chops to the deceased’s head was plainly force used by him that was far greater than could have been necessary to defend himself in such circumstances.

72.  We are unable to accept Mr Sherry’s submission that self defence was a potential plea depending on how the evidence at trial unfolded. This was plainly dispelled by the applicant’s plea of guilty to manslaughter at the outset of the trial, which as Mr Sherry agreed, was an acceptance by the applicant that the killing of the deceased was not lawful, and by Mr Sherry’s acknowledgement that he did not put to the relevant prosecution witnesses at the mahjong place that the deceased had punched the applicant and they struggled over the chopper, which was the evidential basis that the applicant acted in self defence. Mr Sherry also accepted that when the applicant first chopped the deceased from behind, there was no question that he did so in self defence.

Ground 1

73.  Mr Sherry also argues that when the Judge said that the applicant had no legal justification for killing the deceased this was a material misdirection and an error of law.

74.  It is submitted that the Judge overlooked the applicant’s evidence that he “struggled or fought with the deceased because he believed he had to defend himself.”[106] As we have already indicated, it is difficult to reconcile the state of the evidence and the defence case at trial with the argument now advanced on the applicant’s behalf that the killing may have been lawful because the applicant was acting in self defence. At no stage was the defence case presented on the basis that the applicant was acting in self defence and should be acquitted of all wrongdoing for the killing of the deceased. Whilst Mr Sherry claims that he was precluded from addressing the jury on self defence in his closing speech by the Judge’s ruling, there is no doubt, in our judgment, that there was no obvious alternative verdict of an acquittal to the charge of murder based on self defence because the evidence did not support it. Accordingly, given the circumstances of the case, the Judge was right not to direct the jury on self defence when the defence had not dealt with the facts and presented its case on this alternative basis.

75.  It is also submitted that the Judge incorrectly suggested that it was for the applicant “to say something and prove that he was justified in the killing to show that it was ‘not’ unlawful.”[107] Consequently, this left the jury with the impression that there was an onus on the applicant to explain to them why the killing occurred and to prove that it was lawful.[108]

76.  The Judge was not suggesting that the applicant had to say something to prove the killing was lawful. When she said there was “nothing in this case” that the applicant said that he was entitled or had legal justification to kill the deceased, she was merely commenting on the state of the applicant’s evidence. In any event, the Judge made it abundantly clear to the jury that the burden of proving each ingredient of the offence of murder was always on the prosecution. She correctly gave the standard directions when addressing the elements of murder, unlawful and dangerous act manslaughter and manslaughter by reason of provocation. She stressed to the jury throughout her summing-up that the burden was on the prosecution to prove each ingredient of the offence beyond reasonable doubt and that the applicant had no burden to prove anything, including whether the killing was lawful.[109] When addressing the ingredient that the killing had to be unlawful, she properly explained what was meant by an unlawful killing and noted to the jury that, given the evidence, they would have no difficulties in finding the ingredient proven.

Conclusion

77.  For the reasons we have given, we refused the applicant’s renewed application for leave to appeal against his conviction and dismissed his appeal.

Mr Michael Wong, SADPP, and Mr Lucas Lai, PP, of Department of Justice, for the respondent

Mr Anthony James Sherry, instructed by K B Chau & Co, assigned by Director of Legal Aid, for the applicant