IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. CACC 300 OF 2004
(ON APPEAL FROM HCCC 281 OF 2003)
Before : Hon Yuen and Tang JJA in Court
Date of Hearing : 14 April 2005
Date of Judgment : 14 April 2005
J U D G M E N T
Hon Tang JA (giving the judgment of the court) :
1. The applicant was tried for murder but was convicted of manslaughter by reason of provocation. On 14 January 2004 he was sentencedto nine years and six months’ imprisonment. The judge had adopted 12 years as the starting point but gave the defendant a discountof two and a half years because the defendant had offered to plead guilty to manslaughter by reason of provocation.
2. The judge did not give the defendant a full one-third discount although on arraignment the defendant had offered to plead guiltyto manslaughter by reason of provocation. That is because in the final address to the jury Mr Mughal relied not only on the defenceof manslaughter by reason of provocation but also on the defence of manslaughter without intent. The transcript of the followingexchange between counsel and the judge explained how that came about and this is at page 381 of the record :
3. Now the first answer that he gave in answer to question put to him by counsel for the prosecution in cross-examination could notbe regarded as resiling from manslaughter by reason of provocation. Intent to kill was not required for the offence. As for thesecond answer that he gave in answer to the judge’s question, unless the defendant happened also to be a law student, he couldhardly be expected to appreciate that the correct answer was that “I intended to cause grievous bodily harm but I had been provoked”.
4. The evidence was not further explored and Mr Mughal had explained why. He was put into a very awkward position that if he were toseek an adjournment and permission to interview the defendant further that might compromise the defendant’s credibility with thejury.
5. And having regard to the evidence which was elicited in cross-examination and by the judge in his question to the defendant, it seemedto us that counsel and indeed the judge had to deal with the alternative defence of manslaughter without intent. But looking atthe matter as a whole, it is clear from counsel’s address to the jury that the defendant’s main defence was one of provocation. Mr Mughal has drawn our attention to the transcript of his address to the jury. It seems that he had spent 13 pages or there were13 pages of transcript on manslaughter by reason of provocation and only perhaps half a page on manslaughter without intent. Wehave also been referred by counsel to the case of HKSAR v. Franciso Reynaldo F.  4 HKC 37. This is what Leong JA (as he then was) said at the conclusion of his judgment at page 42 :
6. In this application, we believe that the same full discount should have been given to the applicant and for those reasons, we wouldgive leave to appeal and, treating this application as the hearing of the appeal, we will set aside the sentence of nine years andsix months’ and substitute it with one of eight years’ imprisonment.
Mr Simon Tam, SGC and Ms Peggy Lo, GC of Department of Justice, for the Respondent
Mr Hanif M. Mughal, instructed by Director of Legal Aid, for the Applicant