Ajaib Singh J:

The accused who is a police detective is charged with culpable homicide not amounting to murder by causing the death of Yong Foo Min an offence punishable under s. 304 of the Penal Code.

Up to the point when the accused fired a shot from his revolver which resulted in the death of the deceased the facts are not very much in dispute. The accused had gone to the 747 Bar with four others at about 11.00 p.m. Inside the bar he was confronted by the deceased who asked him a few personal questions. A short while later the accused went to the toilet at the rear to ease himself and he waited for his turn while the deceased was already there and about to urinate. Here a quarrel started between them. The deceased said he was unable to pass water while the accused was standing next to him and the accused replied that he could take his time. The deceased became angry and aggressive. He started scolding the accused and wanted to have the matter settled then and there. The accused told the deceased that he was a police officer. He took out his police authority card and showed it to the deceased but to no avail. The deceased persisted in his aggressiveness until he was pulled away by one of his own friends to the passage way which is between the bar proper and the toilet area.

Afraid that the deceased was out to create trouble the accused ran into the counter area from the toilet in order to run out of the bar by climbing over the counter but the deceased ran through the passage way to the counter and confronted the accused. He stood in front of the counter preventing the accused from climbing over it. The deceased was very angry, abusive and aggressive and he threatened the bar proprietor telling him to get the accused out from behind the counter otherwise he would smash up the bar. The deceased even tried to claim over the counter to get at the accused but was pulled back by his friend. The accused then ran back from the counter towards the toilet area with the intention of going out of the bar through the passage way.

Here the evidence for the prosecution and the defence is somewhat in conflict. The evidence of the deceased's friend Loi Ngok Wan is that at this stage when the accused went to the rear from the counter the deceased also went towards the rear through the passage way. Loi Ngok Wan said that he himself followed the deceased. When he opened the door at the passage way leading to the toilet area he heard a shot and saw the accused holding a gun in both his hands pointing at the deceased. He said that the accused and the deceased were about four feet apart. The deceased was holding on to his chest and he helped him out through the passage way and to a chair in the bar.

The evidence of the accused is that he rushed back from the counter to the toilet area with the intention of going through the passage way and out of the bar. As he was approaching the door to the passage way the deceased suddenly rushed in and confronted him. The accused said that he then took out his revolver with his right hand and held his authority card in his left hand with the intention of showing the deceased that he really was a police detective. But the deceased rushed forward and tried to get hold of the revolver by grabbing it with his right hand. At the same time the deceased caught hold of the accused's right shoulder with his left hand. As both of them struggled to gain control of the revolver the accused fired a shot which hit the deceased in the chest. The accused said that they were just about a foot or so apart from each other when the shot was fired.

The evidence of the chemist is that from his examination of the deceased's shirt and the gunpowder found around a hole near the chest area of the shirt he was of the opinion that the gunshot was fired from distance of between one and two feet. In the light of the evidence of the chemist and that of the accused the evidence of the deceased's friend Loi Ngok Wan who said that th