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Criminal law - Trial - Jury instructions - Self-defence - Whether there was an air of reality to the Appellant's contention that he did not intend to cause grievous bodily harm by using a knife to defend himself even though he had intentionally concealed a knife on his person and intentionally swung the knife at the deceased - Whether the fact that the deceased was unarmed and suffered a life ending wound can in itself be enough to block the use operation of s.34(1) of the Criminal Code.

Adam Miu was 18 years old when he was killed by a single stab wound to the left side of his abdomen. It was sufficiently deep that it perforated his small bowel, severed his inferior vena cava, sliced part of his psoas muscle and nicked his L5 lumbar spine disk. This evidence was uncontradicted and unchallenged at trial.

Vuthy Kong was charged with the second degree murder of Adam Miu and convicted by a jury of manslaughter. His primary defence at trial was that he was not the person who stabbed Miu. The jury found otherwise. The central issue on appeal was whether the defence of self-defence should have been left to the jury. It had not been left with the jury.

At trial, Kong's defence counsel had argued that self-defence, specifically under s. 34(2) of the Criminal Code, R.S.C. 1985, c. C-46 , should be put before the jury. The trial judge rejected this
submission, finding there to be no air of reality to that defence. On appeal, the defence argued that the trial judge erred in not charging the jury on self-defence. The defence argued that the trial judge shuld have charged the jury not only under s. 34(2) of the Code, but also under ss. 27 and 34(1). The primary focus during oral argument was on s. 34(1) and the application of the air of reality test to that section. The majority of the Court of Appeal dismissed the appeal. Wittmann J.A. dissenting would have allowed the appeal on the basis that the defence of self-defence as set out in s. 34(1) has an air of reality and should have been put to the jury for its consideration.