Leung Ping Fat v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 51 OF 1973

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Coram: Huggins, McMullin & Pickering, JJ.

Date: 9 May 1973.

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JUDGMENT

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Huggins, J.:

1.  Upon the Appellant’s trial for murder the learned judge decided that it was unnecessary to direct the jury as to self-defence and provocation and in effect withdrew those defences from the jury. The issue upon the appeal is whether that course was justified.

2.  The evidence was that the Appellant was one of four men who entered a shop in Kowloon. They were all armed with knives. Some of them went into the office and demanded money. A member of the staff, called Kwok, who had been to the toilet in the back yard then returned and found himself confronted by the Appellant. The exact sequence of events thereafter is not clear but there was a struggle between Kwok and the Appellant. The Appellant said in a cautioned statement that Kwok took a wooden pole and repeatedly hit him with it. It seems certain that at some point Kwok caught hold of the Appellant’s neck-tie and also that while Kwok was doing that the Appellant stabbed him five times with his knife, after which the Appellant cut off his own neck-tie, the end of it being left in Kwok’s hand. Kwok then collapsed on the floor and he died from the stab wounds he had received. All four men fled from the scene.

3.  There was no eye-witness of the stabbing and the Crown relied largely on the Appellant’s original cautioned statement and on his answer when he was formally charged by the police. The cautioned statement was in these terms:

“I myself was willing to speak. I can write (it) myself. I wish to speak. I know that I need not have to speak unless I wish to do so but whatever I say will be written down and may be given in evidence. (Signed) LEUNG Ping-fat.

On the evening about the 3rd of January, I was with CHAU Leung and LO Yee-kam in the third floor of Block 14 Shek Kip Mei. Later (one charactered crossed out) Hung Chai arrived and said, ‘We all have no money. Go out to have a look.’ Afterwards LO Yee-kam, Hung Chai, CHAU Leung and I, four persons, (one character crossed out) took a scout knife each and went out to the street. Later (we) arrived at a coffin shop in Dundas Street where (we) saw three men inside. We then went in to get ready to rob. On entering, (we) saw three male adults. At this time we did not want to rob. Later LO Yee-kam (Signed) LEUNG Ping-fat took out a scout knife telling the three persons to raise their hands. At this time I was on the left; LO Yee-kam and Hung Chai were on the right; CHAU Leung was behind me. Later, unknowingly a man rushed out from the left intending to rush into the street. At this moment I pointed at him with a knife telling him to raise (his) hands, but the man did not obey and took a wooden pole to hit me on my head. My left face was hit. It was bleeding then. Later I caught hold of him but he kept on hitting me on my body with the pole. At this moment I stabbed him several times with the scout knife. I did not know where I stabbed him. On seeing him (one character crossed out) hitting me, I then stabbed him with the knife. Later I pulled him out. He was still holding my necktie. I then cut my necktie with the scout knife. I saw him bleeding and told them to run away. Later (one character crossed out) (we) returned to Shek Kip Mei by taxi. Later CHAU Leung took away my scout knife saying that it would be thrown away. There was blood in my clothing which (I) then took off. CHAU Leung threw it away for me.

I had no intention to stab him to death though I hit and killed a person this time; because he hit me with the wooden pole I then stabbed him several times unintentionally. I had no intention to stab him to death. (I) hope the Judge would pardon me and sympathize for having no intention to stab him to death this time. (I) hope the Judge would give me a chance so that (I) would become a good person all over again.”

In answer to the charge the Appellant said:

“I understand. At that time, I was hit several times on my head by this man with a wooden pole. It was in defence that I killed him unintentionally. At that time, this man also intended to strangle me to death with (my) neck-tie. So, it resulted in my killing him with a knife unintentionally.”

4.  The Appellant’s defence at the trial was that he was not present at the time of the alleged murder, that he did not even know the shop and that the statements produced by the police were involuntary and untrue. He said he could not remember where he was on the day in question, the suggestion being that he had not had his mind directed to the particular day until 3½ months later, after he had been arrested in connection with some other matter.

5.  What, then, is the law? In the first place the defences of self-defence and provocation must be left to the jury if there is evidence which could support them and it is immaterial whether the accused has relied upon them: see, for example, Reg. v. Cascoe (1970) 54 Cr. App. R. 401. It is, of course, a question of law whether there is evidence which could support these defences but, if there is evidence, however tenuous, from which a reasonable jury could infer that the accused killed in self-defence or as a result of provocation, the judge usurps the function of the jury if he withdraws the defences from the jury. A more difficult question arises where an accused person who sets up self-defence or provocation may himself have provoked the conduct of the deceased which is the basis of his defence. In Edwards v. Reg. 1972 3 W.L.R. 893 the court was concerned only with provocation (what the Privy Council called “self-induced provocation”) and not with self-defence. The conduct which it was there suggested might constitute the self-inducement to the provocation was blackmail and the Board said at p.901:

“On principle it seems reasonable to say that –

(1) a blackmailer cannot rely on the predictable results of his own blackmailing conduct as constituting provocation sufficient to reduce his killing of the victim from murder to manslaughter, and the predictable results may include a considerable degree of hostile reaction by the person sought to be blackmailed, for instance vituperative words and even some hostile action such as blows with a fist;

(2) but if the hostile reaction by the person sought to be blackmailed goes to extreme lengths it might constitute sufficient provocation even for the blackmailer;

(3) there would in many cases be a question of degree to be decided by the jury.”

It is to be noted that their Lordships did not say it would in every case be a question of degree to be decided by the jury, and they must therefore have recognised that there might be cases where the deceased’s hostile reaction could not be sufficient provocation because it was so obviously within the predictable results of the blackmailing conduct. A fortiori where the self-inducement to the alleged provocation consists not in blackmailing conduct but in a violent felony it seems to us that there must be cases where the deceased’s hostile reaction could not be sufficient provocation because it was so obviously within the predictable results of the violent conduct of the accused. The short point is whether the present was such an obvious case. If it was, then the learned judge was justified in not leaving provocation to the jury, but, if it was not, then he has usurped the function of the jury – unless there was no evidence that the Appellant was in fact provoked.

6.  The learned judge put the matter to the jury in this way:

“You may have concluded, Members of the Jury, from the evidence of the three eye-witnesses, that the deceased was killed in the course of defending himself against a robber, in the course of resisting a robber. If you have concluded that, there is no room – in this case – for such defences as provocation or self-defence, for if a person sets out to rob, it is – you may think – a predictable result of his conduct that a victim will resist and resist with violence, and a robber cannot rely on the predictable results of his own conduct. He cannot rely on the violent resistance, within ordinary limits, of his victim in order to excuse his conduct.”

There are two things to be noted. First, this passage shows that in the opinion of the learned judge no reasonable jury could find that the Deceased did anything which went outside the predictable results of the Appellant’s felonious conduct. Secondly, the judge did not elsewhere in his charge indicate what the position might be if the jury did not conclude from the evidence that the Deceased was killed in the course of resisting a robber: again, he seems to have thought that no reasonable jury could have doubt upon this. What counsel for the Appellant contends is that the judge went too far on both these aspects of the matter. It is a border-line case and one can readily see why the learned judge took the view he did. The inherent weakness of the defence was emphasised by the failure of the Appellant to give oral testimony in support of it at the trial. In the statement the Appellant said that when the knife was pointed at him the Deceased took a pole and hit him on his head, that when the Appellant “caught hold of him” the Deceased kept on hitting him on his body with the pole and that at some stage the Deceased held him by the neck-tie. Had the matter rested there we cannot believe anybody could have hoped to persuade the jury that the Deceased had resorted to “extreme measures” which went outside the predictable results of the Appellant’s own conduct. The only fact which has made the point arguable is that in his statement in answer to the charge the Appellant asserted that the Deceased “also intended to strangle me to death”. From what we have already said about Edwards v. Reg. it follows that the victims of some crimes can go to such extreme lengths to resist that, in effect, that have ceased to “resist” and have embarked upon a counter-attack. If the original attacker reasonably believes his victim to have reached such extreme lengths that he has ceased to resist, and is thereby provoked into killing the victim, he is not guilty of murder but only of manslaughter. The more violent the original crime the greater the length to which the victim of that crime must be expected to go in his resistance and the more difficult is it likely to be for the attacker to persuade the jury that his victim might have gone too far. Therefore the more violent the original crime the more easily will a judge be able to say that no reasonable jury could find that the victim had gone too far in his resistance. Nevertheless, where that resistance involves an attempt to kill the attacker it may be difficult to say that the case is so obvious that it is not a question of degree which ought to be decided by the jury. In the present case the judge did not tell the jury that a robber who killed his victim could under no circumstances avail himself of the defences of provocation and self-defence but said that a robber who killed his victim when the victim was “in the course of resisting [him]” could under no circumstances avail himself of those defences: it was never suggested that, if the victim went to such extreme lengths that he was no longer resisting at all but was making a felonious counter-attack, the defences would not be open. Even so the question of degree could have arisen in this case and we have to decide whether it ought to have been left to the jury.

7.  We turn, therefore, to examine the further question, whether there was evidence sufficient to be left to the jury that the Appellant could have believed that the Deceased intended to strangle him to death and thus gone outside the ordinary limits of resistance. All we have is his bare assertion that that was the Deceased’s intention. What possible basis was there for such a belief? Obviously the learned judge thought there was none and we find it difficult to dissent from that view. The mere facts that the Deceased seized the Appellant’s tie and, according to the Appellant, was trying to strangle him with it in no way suggested that the Deceased had ceased to resist the attack being made upon him and had embarked upon a murderous counter-attack. The possibility was so remote that in our view no reasonable jury could, in the absence of evidence to support his assertion, have come to the conclusion that the Appellant might have believed the possibility was a reality.

8.  The principles relating to the applicability of self-defence to such a case as this would seem to be similar to those relating to the applicability of provocation and, similarly, the question we have to ask ourselves is whether it was open to a jury on the evidence to find that the Appellant might reasonably have believed that he was defending himself against an unlawful attack by the Deceased. Again, the assertion by the appellant solely in a cautioned statement that the Deceased intended to strangle him to death seems to us, in the circumstances of this case and unsupported as it was by any indication of factors which could reasonably have led the Appellant to think the Deceased was trying to murder him, so preposterous that the learned judge was entitled to assume that no reasonable jury would think it might possibly be true. Had there been evidence that the seizing of the Appellant’s tie was, for example, accompanied by words indicating an intention to murder the Appellant, or even to kill him, I would have taken a different view and held that there was a question to be left to the jury. To that extent it can be said that the point in issue is a fine one, but looking at the evidence which was before the court we do not think that the judge came to a wrong decision.

9.  It must be made clear that there was no question of there being a legal onus of proof upon the Appellant: the legal onus of disproving self-defence and provocation was fairly and squarely upon the prosecution. However, there may be an evidential burden upon an accused which is entirely distinct from the legal burden and it is such an evidential burden with which we are concerned here. Where the prosecution leads evidence which does not suggest any reasonable possibility that death was caused in self-defence or as a result of provocation there is a burden on the defence to adduce evidence which does suggest such a reasonable possibility. Only when that has been done does the legal burden of negativing self-defence or provocation assume importance and only then is the judge required to direct the jury in relation to that defence.

10.  The application for leave to appeal is dismissed.

9th May, 1973