HKSAR v. Wong Fung

CACC 266/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 266 OF 2016

(ON APPEAL FROM HCCC NO. 240 OF 2015)

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Before :  Hon Lunn VP, Macrae and McWalters JJA in Court

Dates of Hearing :  9 August and 16 November 2017

Date of Judgment :  16 November 2017

Date of Reasons for Judgment : 29 November 2017

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.The applicant sought leave to appeal against his conviction, after trial by Deputy High Court Judge Stuart-Moore and a jury, on 4 August 2016 of the murder of his wife Ms Wong Lei (“the deceased”) on 12 September 2014, contrary to Common Law. At the hearing on 16 November 2017, we granted the application for leave to appeal against conviction and, treating the hearing of the application as the hearing of the appeal, we allowed the appeal and quashed the applicant’s conviction. We said that we would give our reasons in due course. That, we do now.

The trial

2.It was not disputed that the applicant came to Hong Kong in 1985 and married the deceased in 1987. They had lived in a flat on the 1^st Floor, 155, San Hui Village, Tuen Mun for a number of years.  They had two adult children, who lived separately from their parents.

The prosecution case

3.On 12 September 2014, the applicant, accompanied by his legal representatives, surrendered himself to police officers at Tuen Mun police station.  Having been arrested for the murder of his wife and having been cautioned, the applicant responded “…around 6 am on 12 September 2014, I had a quarrel over the issue of my wife Wong Lei having an affair.  I hit my wife unconscious by accident and then I left home…” [1].

4.CCTV footage taken on 11 September 2014 depicted the applicant entering the building at 3:22 p.m. Then, the deceased was depicted entering the building at 6:16 p.m. that day.  Next, the CCTV footage depicted the applicant leaving the building by himself at 8:41 a.m. on 12 September 2014, carrying a rucksack on his back and holding two plastic bags.[2]

5.A search of the bedroom of the flat by police officers revealed the presence of the deceased on a bed.  A blood-soaked towel, twisted at the end, and some electric wires were found around her neck.  Nearby, on the bed were two audio speakers, to one of which the electric wire was still attached, and a box which had contained a watch.  Next to the head of the deceased was the broken wooden shaft of an axe.  On the floor next to the bed was a broken cooking pan, from which the handle had become detached and other parts of the watch box.

6.Having conducted an examination of the deceased at the flat, on 16 September 2014 Dr Foo conducted an autopsy on the deceased [3]. He found she had sustained multiple injuries, including 18 lacerations and cuts to her forehead, her ears, her face and her lips.  Whilst most of them were between 1 and 3 cm, one of them was about 6 cm in length.  He also observed bruising around her neck and multiple bleeding spots over her eyes.[4] In his opinion, the deceased died from asphyxiation, caused by the application of pressure to the neck.[5]   

7.Having conducted an examination of the flat on the evening of 12 September 2014, Ms Lin Sze Wah, a Government Chemist from the Forensic Science Division of the Government Laboratory, noted blood spatter patterns on the wall, the wardrobe and on the bedhead.  She said that the deceased was the subject of “fierce attacks” and that “a heavy blow(s)” had created those patterns [6].  She concluded that the cooking pot, the watch case and the speakers were possibly amongst the items that could have been used to hit the deceased.[7] 

The defence case

8.The applicant gave evidence at his trial.  He testified that in 2000 he had sustained a serious injury to his left hip joint when he had slipped at work and fallen to the ground.  He was on sick leave for 120 days.  The injury affected his sexual ability.[8]  Although he was able to gain an erection of his penis, he ejaculated prematurely.

9.On 1 September 2014, he had seen his wife holding hands with the man in the Waldorf Shopping Centre in Tuen Mun.  He felt that the world was collapsing.  He had known his wife since he was 19 years of age and they had been together for 30 odd years.  He wanted to save their relationship.[9]  A few days later he instructed a private detective to take photographs of his wife and the other man.  He told his son what he had done and asked him to help persuade his mother to leave the man and return to the family.  His son agreed.  On 10 September 2014, the private detective provided him with photographs of his wife and the man at Hong Kong International Airport, by WhatsApp.  He felt very upset.[10]  He sent the photographs by WhatsApp to his son.[11]  He asked the private detective to follow the man and, if he was in the company of another woman, to take photographs of them.

10.Of the events of 12 September 2014, the applicant testified that, having awoken in the matrimonial bed at about 6 a.m., he had put his arm around his wife and asked if she wished to go out for morning tea.  However, she responded by yelling “Don’t touch me, go by yourself.”  She added “I won’t let you touch me for the rest of my life” and elbowed him away.  For his part, crying as he did so, the applicant informed the deceased that he knew that she had “another man outside”.  The deceased said “It’s even good that you know.  Let me tell you he gave me much pleasure when we have sex.  You and him are not on comparative terms.”  The deceased told him that she wished to have a divorce and wanted to keep the flat.  She wanted him to leave.[12]

11.The applicant testified that the deceased’s remarks were “very painful”.  He said “I lost every single self‑esteem for a man.”  He felt numb and he went to the kitchen to get a glass of water.  He was shivering and his hand was shaking when he poured the water.  On his return to the bedroom the deceased said “You were unable to have sex with me.  He did that for me and you are still grumbling.”  Then she said “You have got the appearance of a man.  Apart from that, what aspect of you can be said to be of a man?  But he is different.” [13]  The applicant said:[14]

“ I felt as if everything rushed to my brain, my whole body was shaking. It felt as if someone was squeezing the back of my head very hard. There is a cabinet at the side of the bed. I took a thing and I threw it at her. At this point of time, my mind was a blank. I felt nothing. When I became conscious I had my hand round her neck.”

12.The applicant testified that when he became conscious he obtained a towel from the bathroom and wiped blood away from the deceased’s face.  However, his attempts to rouse her were unsuccessful as she did not move at all.  He realised that he had made a big mistake and had to shoulder the responsibility.[15]

The summing up: the issues

13.At the outset of his summing up, the judge identified the issues in the case.  On the one hand, the prosecution said that “the right verdict here should be murder”.  On the other hand of the prosecution case, the judge said, the defence is saying “no, it should be manslaughter”.[16]  In the result, the judge left to the jury the verdict of manslaughter on two bases: namely, first, if they were satisfied that the applicant had the requisite intent for murder, on the basis of provocation and, secondly, if they were not satisfied of the requisite intent for murder, on the basis of an unlawful and dangerous act.

14.Of the prosecution case, the judge said:[17]

“ They say that even accepting what the defendant has said as to his version of events in the bedroom before he killed his wife, even accepting all of that - no doubt there was a disagreement, no doubt the defendant was upset - they say this terrible beating about the head of the wife and eventually the asphyxiation which seems to have caused her death, it has to be murder when you think about all the circumstances, and you put it into the framework of provocation as the law will describe it.”

15.Of the defence case in respect of the partial defence of provocation, the judge said:[18]

‘ The defence case is very different as you know, it is in fact the opposite. Here was somebody who was trying to patch up the marriage. He did not want a divorce and wanted to stay with his wife. As you heard Mr Boyton, only a few minutes ago really, saying, if you look at the evidence here, there is an abundance of evidence to show that he was doing all in his power to keep the marriage together, by talking to his children, and one or two of the things that he had said to the private detective indicate that he was really keen to keep the marriage going.

So it is that the defence say that these were the actions of a man, on that morning when he killed his wife, that showed that he had suddenly and temporarily lost his self‑control because of the things which his wife had said to him, very hurtful things, and all of that in the light of the affair that he believed his wife, correctly, was having with Wong Wing. 

So it is argued that the conduct of the defendant was or may have been such that an ordinary man, sober at the time, of the defendant’s age, which is 50 at the time, and bearing in mind he has a particular sexual complaint which the wife targeted in her words, bearing all of that in mind, was this such that an ordinary sober man might well have reacted in the way he did?  If so, he is entitled to be acquitted, on the ground of provocation, of murder.”

16.Of the alternative verdict of manslaughter by an unlawful and dangerous act, the judge said:[19]

“ ...if you were not satisfied that the defendant intended to cause at least really serious bodily harm to his wife, that would also be manslaughter if you are satisfied he killed her through unlawful acts”.

Grounds of appeal against conviction

17.At the suggestion of the respondent, the applicant sought the leave of the Court to file amended perfected grounds of appeal against conviction, which amendments addressed directions required of a trial judge to a jury in respect of provocation in certain circumstances as identified by the Court of Final Appeal in the judgment of Fok PJ, with whom all the other judges agreed, in HKSAR v Liang Yaoqiang.[20]  The Court granted leave to file amended perfected grounds of appeal against conviction, by which four new grounds were added as the first four grounds of appeal, and directed that those grounds only be the subject of the hearing of 9 August 2017.  That hearing was adjourned to 16 November 2017, so that the Court could be provided with transcripts of the evidence of Dr Foo, the forensic pathologist, and Ms Lin Sze Wah, a chemist in the Forensic Science Division of the Government Laboratory.

18.By grounds 1 to 4, it was contended that in his closing address counsel for the prosecution had invited the jury to have regard to the length of the attack and the nature and extent of the injuries inflicted on the deceased in determining whether or not, if the applicant had been provoked, a reasonable man would have reacted in the manner the defendant did.  The Court was asked to note that the prosecution suggested that “…an ordinary man should not react like that.  It should not result in the death of another human being for what they have said.” [21]  Then, it was submitted that the judge had failed to direct the jury to consider whether the provocation was sufficient to make a reasonable man form the intention to kill or cause grievous bodily harm and to act on that intent.  Rather, it was contended that the judge had encouraged the jury to compare the extent of the injuries inflicted on the deceased and the nature of the applicant’s reaction to that of a reasonable man in order to decide whether the applicant was provoked.   In the result, it was submitted that, rather than correcting the impermissible line of reasoning advanced in the prosecution’s closing speech, the judge seemingly endorsed it.  In those circumstances, it was left open to the jury to find the applicant guilty of murder if they thought the nature or extent of his reaction was greater than that of a reasonable man.

Joint submissions

19.In their joint submissions filed with the Court on 29 June 2017, Mr William Tam SC, for the respondent, and Ms Charlotte Draycott SC for the applicant, relying on the judgment of the Court of Final Appeal in HKSAR v Liang Yaoqiang, invited the Court to allow the application and quash the applicant’s conviction for murder on grounds 1 to 4 of the amended grounds of appeal against conviction.

20.In the respondent’s supplemental submissions, filed with the Court on 13 October 2017, which submissions were adopted by the applicant, the Court’s attention was drawn to the judgment of the Court of Final Appeal in HKSAR v Tam Ho Nam,[22] in which the Court had allowed an appeal and quashed a conviction for murder on precisely the same grounds as in HKSAR v Liang Yaoqiang.

21.This Court was invited to note that in construing the meaning of the phrase “do as he did” in section 4 of the Homicide Ordinance, Cap 339 [23], namely “the question whether the provocation is enough to make a reasonable man do as he did should be left to be determined by the jury”, Fok PJ said in his judgment in HKSAR v Liang Yaoqiang:[24]

“ This requires a jury to consider whether, in the light of the gravity of the provocation on a person in the position of the defendant but with the ordinary powers of self‑control to be expected in society today, that person might form the intention to kill or cause grievous bodily harm to the victim and have acted on that intention.”

22.Further, Fok PJ went on to state that “if there was a risk that, without a proper direction, the jury may embark on a line of reasoning that would, on that construction be impermissible” [25] then “it is incumbent on the judge to direct the jury in terms that will instruct them not to do so since that would be a line of reasoning inconsistent with the proper construction of s 4.”[26]  Fok PJ identified the impermissible line of reasoning as being:

“ …to reason that: (a) notwithstanding that he was in fact provoked to lose his self‑control; (b) the scale of the retaliation was out of proportion to the provocation offered; so that (c) the objective question should necessarily be answered against him”.

23.Addressing the issue generally, Fok PJ said that identifying whether or not such a risk of impermissible reasoning arose in a particular case required regard to be had to “the nature and extent of the homicidal act in a given case” and on “the course of cross‑examination of the defendant and the content of the closing speeches of counsel.” [27]

24.The Court concluded that there was such a risk in that case and, having found that the judge had not given directions to the jury warning them not to adopt the impermissible line of reasoning, quashed the conviction.

The prosecution’s closing speech

25.In their joint submissions, counsel identified the passages in the closing speech of Mr Richard Turnbull, which they submitted gave rise to the “real risk of the impermissible line of reasoning being employed by the jury in the present case”.  Having pointed to the “…horrible pictures of the injuries that the deceased has sustained to her face and neck and head and lips and teeth” [28] and to the fact that the deceased had sustained 18 lacerations on the skull,[29] Mr Turnbull posed the rhetorical question:[30]

“ ….whether what she said to her husband on that fateful day would cause an ordinary and sober person, people like yourselves -although you’re not the age of the defendant, he’s 50 or thereabouts of the time - and with - you heard about his alleged sexual difficulties, premature ejaculation to put it very simply - if all those things considered were said to him would cause him to do as he did - 18 blows.” [Italics added.]

26.Counsel suggested that was illustrative of the impermissible line of reasoning suggested to the jury in counsel for the prosecution’s closing speech.  Elsewhere, he had said:[31]

“ …would it cause an ordinary sober person about the defendant’s age, 50 years of age, and with his characteristics to lose self‑control and inflict those injuries on his wife.” [Italics added.]

27.In their joint submissions, counsel contended that, far from giving directions which counteracted the suggested impermissible line of reasoning in the closing speech for the prosecution, the judge seemingly endorsed the closing speech for the prosecution.  In particular, they pointed to the fact that the judge said:[32]

“ Now, the prosecution, of course, are saying that the defendant acted out of all proportion by killing his wife… and they say no ordinary person as defined would have acted as the defendant did, whether or not they had suffered from some sort of sexual disability or had to put up with these awful things that his wife according to him, was saying to him.”

A consideration of the submissions

28.As noted earlier, the judge left three verdicts to the jury.  First, the issue of murder.  Secondly, the issue of manslaughter by provocation and thirdly, the issue of manslaughter by an unlawful and dangerous act without intent to kill or cause grievous bodily harm.  Clearly, the nature of the homicidal acts and the applicant’s related testimony was highly relevant to the issue of intention in the offence of murder.

29.In his judgment in the Court of Final Appeal in HKSAR v Tam Ho Nam, with which all the other judges agreed, Fok PJ said:[33]

“ In the present case, the killing of Lau was a result of a frenzied attack with a chopper resulting in at least 50 cut wounds to her body. The prosecution’s cross‑examination of the appellant focused on the precise form and extent of his retaliation in the face of Lau’s allegedly provocative actions and words. This theme was revisited in the prosecution’s closing speech, in particular in the following extract from that speech shortly before its conclusion:

“ However, if despite of what I said above, you still take a view that the accused had been provoked or might have been provoked to kill Miss Lau by things said or done by her and/or by his elder brother, then you have to consider -then now you have to consider the objective element, i.e. whether an ordinary and sober person, free from drug, of the accused’s sex, age and his characteristics, would have behaved as he did.

Would an ordinary person choose to break up with Miss Lau if he did believe that she had an affair with his elder brother?  Probably yes. Would an ordinary person ask her to leave his place immediately?  Probably yes.  Would an ordinary person use physical violence on her?  Probably yes.  Would an ordinary person lose control and use a chopper to chop her to death?  Chop her over 40 times while she was lying or crouching in the lower bunk.  Use your common sense and your collective experience of life.  You would know an ordinary person would not do as he did.”

30.Of that part of the prosecution closing speech, Fok PJ said:[34]

“ The scale of the actual retaliation by the appellant to the provocation was used as a means to suggest that the response to it went beyond that to which a person with ordinary powers of self‑control would have resorted.” [Italics added.]

31.Of those circumstances, Fok PJ said:[35]

“ The risk of the jury adopting that impermissible line of reasoning when considering the objective limb of the provocation defence was also exacerbated by defence counsel’s speech to the jury in which he (quite properly) invited it to conclude, in relation to the subjective question of whether the appellant had in fact been provoked into losing his self‑control, that the number of chop wounds, their depth in the short period of time in which they were inflicted showed that this was due to a sudden and temporary loss of self‑control.”

32.Having noted that the judge had not given “… particular direction to counteract the risk of the jury pursuing the impermissible line of reasoning”, albeit that it was to be acknowledged that no criticism attached to the judge since the decision of the Court of Final Appeal in HKSAR v Liang Yaoqiang was not then available, Fok PJ said that the judge had misdirected the jury by failing to give the special direction articulated in HKSAR v Liang Yaoqiang.[36]  In the result, the Court quashed the appellant’s conviction for murder.

The prosecution’s closing speech

33.In his closing speech, Mr Turnbull suggested to the jury that the “central issue” on the count of murder was “did he intend to kill his wife or cause her grievous bodily harm.” [37] Mr Turnbull invited the jury to reject the applicant’s testimony that he could not remember what he had done to his wife that led to her death.  Then, he posed the rhetorical question “what is that evidence that we say indicates that he intended to kill or cause grievous bodily harm?”[38]  Answering that rhetorical question, Mr Turnbull suggested there were three main pieces of evidence.  Of the preliminary examination of the deceased, as she lay dead on the matrimonial bed, and the subsequent autopsy, Mr Turnbull said:[39]

“ …you saw the horrible pictures of the injuries that the deceased had sustained to her face and neck and head and lips and teeth, and you had a better view of those taken during the autopsy.

But the only matters I’d like to draw to your attention for you to bear in mind on the question of intent, on the basis of what Dr Foo told you here in court, is, firstly, the number of lacerations and bruises that the deceased sustained to her head and skull and neck.  On my count - and I’ll stand to be corrected - I had 18 - 18 - and we saw them and we saw the depth of some of those lacerations on the skull; remember that?  And around the ear?”

34.Of the evidence that two front teeth of the deceased had been fractured, Mr Turnbull said:[40]

“ …but we have seen pictures here of her two front teeth fractured, so you can imagine the force that was used to fracture those teeth that day.”

35.Of those injuries, Mr Turnbull said:[41]

“ …we say that shows a clear intent to kill or at least cause grievous bodily harm,”

36.Then, Mr Turnbull reminded the jury of Dr Foo’s evidence that the deceased had been struck by blunt objects, which blows whilst not fatal would have rendered her unconscious.  He reminded the jury of the variety of implements found on and around the bed, namely the broken axe handle and the speakers, found on the bed, and the broken handle of the cooking pan, the vase and watch box on the floor.  He suggested that the applicant had gone outside the bedroom to obtain the cooking pan and done so during the attack.  Then, he invited the jury to consider as ferocious, the blow delivered with the cooking pan which had caused the handle to break.  That, he said “is indicative of the defendant’s intention to kill his wife or cause her grievous bodily harm.” [42]

37.Next, Mr Turnbull reminded the jury of Dr Foo’s evidence of the injuries to the deceased’s hands and forearms which were consistent with being defensive injuries.  Of Dr Foo’s evidence that the blows had rendered the deceased unconscious, Mr Turnbull said “we say, that the defendant continued to attack his wife after she was unconscious.”  That, he said, was indicative of an intent to kill or cause grievous bodily harm.[43]

38.Of Dr Foo’s evidence that the cause of death was asphyxiation, Mr Turnbull reminded the jury that he had said that the cause of pressure to the neck which resulted in asphyxiation was a blunt surface.  Mr Turnbull suggested:[44]

“ So Doctor Foo’s finding show you that after the deceased became unconscious, she was asphyxiated, a pressure going to the neck. Now, what does that tell you members of the jury? It shows you, we say, that the defendant was intending to kill his wife or cause her grievous bodily harm.”

39.In inviting the jury to reject the applicant’s testimony that his mind had gone blank and that he could not recall what had happened until he became conscious, Mr Turnbull said:[45]

“ That attack must have gone on for some time. If you think he went and fetched the cooking pot and the axe - because people don’t keep axes in the bedroom as far as I know - then it took some time.”

40.Having addressed briefly the alternative verdict of manslaughter by an unlawful and dangerous act without intent, Mr Turnbull turned to the partial defence of provocation.  In doing so, he said:[46]

“ You have to decide whether in fact he was provoked, or might have been provoked, by the conduct of the deceased, or the alleged conduct about what she said - I mentioned that - and whether what she said to her husband on that fateful day would cause an ordinary and sober person, people like yourselves - although you’re not the age of the defendant, he’s 50 or thereabouts at the time - and with - you heard about his alleged sexual difficulties, premature ejaculation to put it very simply - if all those things considered were said to him would cause him to do as he did - 18 blows.” [Italics added.]

41.Subsequently, Mr Turnbull said:[47]

“ The issue for you is what the deceased allegedly said to the defendant that day, would it cause an ordinary sober person about the defendant’s age, 50 years of age, and with those characteristics to lose self‑control and inflict those injuries on his wife?” [Italics added.]

42.Of the evidence of the chemist in respect of blood spatter pattern in the bedroom, Mr Turnbull reminded the jury that she had said that the attack was “fierce”.  Of that, Mr Turnbull submitted to the jury:[48]

“ We say that that attack is not the reaction of an ordinary 50‑year‑old man, even with the defendant’s characteristics. He is expected to exercise self‑restraint. We say that reaction reflects the bad temper that he had. He just lost his temper.”

43.Mr Turnbull went on to say of the conversation that the applicant testified he had with his wife leading up to her killing:[49]

“ …we again say that none of that, what the deceased allegedly said to him, is sufficient to cause the horrific injuries that the man caused to his wife on that day.” [Italics added.]

44.Finally, Mr Turnbull repeated his submissions in relation to the fierce nature of the attack:[50]

“ …the attack was described as fierce and not the work of a 50‑year‑old man who is expected to exercise self‑control, as sober 50‑year‑old man, even with the defendant’s alleged sexual characteristics.

Now, why did she say it was fierce?  Look at the number of articles that were used to inflict those injuries.”  [Italics added.]

45.Also, Mr Turnbull reminded the jury that the chemist’s evidence that the attack was fierce was supported by evidence of the broken handles of the axe and the cooking pan.

46.Then, Mr Turnbull returned to his earlier suggestion to the jury that the fact of the presence of the cooking pan and the acts in the bedroom suggested that the applicant had left the bedroom during the attack on the deceased and returned to use those implements.  In doing so, Mr Turnbull was returning to address the issue of proof of an intention in the applicant to kill or cause grievous bodily harm to the deceased.

“ The prosecution say you should know from the evidence that it was a lengthy attack; the number of lacerations, there are 18 and you can look at the exhibits and the horrific injuries this woman sustained. And that she was trying to defend herself, you can see that in the photographs, and that at some stage, she became unconscious.

A considerable degree of force must have been used in this attack.”

47.In the result, Mr Turnbull submitted “…we say that…, if you consider all that, it shows a man intent on killing his wife or, at the very least, causing her grievous bodily harm.” [51]

The summing up

48.In their joint submission’s counsel identified five passages in the judge’s summing up which it was submitted “seemingly endorsed” statements in the closing speech for the prosecution which gave rise to the risk of the jury taking an impermissible line of reasoning in addressing the question of whether or not, in face of the conduct and words of the deceased, an ordinary, sober person of the defendant’s sex and age might have been caused to do as he did.

49.The judge posed three rhetorical questions to the jury in respect of the alleged conduct of the deceased:

(i) “…was this such that an ordinary sober man might well have reacted in the way he did? [52];

(ii) “…was the provocation such that an ordinary and sober person of the defendant’s age and sex and suffering from the sexual difficulty he has described, having ordinary powers of self‑control, would or might have done what the defendant did?” [53]; and

(iii) “ …was the provocation such that an ordinary and sober person of the defendant’s age and sex and suffering from the sexual problem of premature ejaculation, and having ordinary powers of self‑control, would or might have done what the defendant did?” [54]  [Italics added.]

50.Earlier in the summing up, in the course of giving the jury directions in respect of provocation the judge had said:[55]

“ Now, the prosecution, of course are saying that the defendant acted out of all proportion by killing his wife.” [Italics added.]

The context in which the judge gave that direction was his earlier direction in respect of that issue, namely:[56]

“ …was or may that conduct have been such as to cause an ordinary and sober person of the defendant’s age, sex, and his difficulty in having sexual intercourse with his wife have done as he did, which is kill his wife.”

51.Subsequently, the judge directed the jury:[57]

“ If on the other hand, your answer is that what was done or said, or both, would or might have caused an ordinary sober person of the defendant’s age and sex and that sexual problem - because she taunted him about that - to do what he did, your verdict will be not guilty on the count of murder but guilty on the alternative of manslaughter by reason of provocation.” [Italics added.]

52.The judgment of the Court of Final Appeal in Liang Yaoqiang was delivered six months after the conclusion of the applicant’s trial.  Accordingly, neither counsel nor the judge had the benefit of that judgment at the trial.  As noted earlier, in cases where there was a risk that the jury might pursue the impermissible line of reasoning the Court said that it was incumbent on a judge to direct the jury not to do so.  Again as noted earlier, in determining whether such a risk existed regard was to be had to the nature and extent of the homicidal act, the cross‑examination of the defendant and the contents of closing speeches.

53.Having provided an illustrative suggested direction[58] to be given to the jury, in a form to be adapted to the facts of the case, in the event that it was determined that there was a real risk that the jury might pursue the impermissible line of reasoning, in order to assist the trial judge address the issues arising, the Court said:[59]

“ …in every case where the defence of provocation falls to be left to the jury, the trial judge should:

(1) Before closing speeches, discuss with counsel whether the evidence and/or their submissions will call for such a direction and, if the judge decides that such a direction is to be given, should discuss with counsel the proposed terms of such a direction; and

In the event that such a direction is to be given, provide the jury with a written form of the direction to be presented as part of a fuller written direction as to the law of murder and the defence of provocation.”

54.Not surprisingly, the issue of whether or not there was a risk of the jury pursuing an impermissible line of reasoning was not even raised let alone considered by the judge and counsel and none of the suggested steps identified above were taken.

55.Clearly, evidence of the numerous implements used to attack the deceased, the length and extent of the attack were all matters highly relevant to the issue of the applicant’s intention in the count of murder.  It supported the prosecution’s case that the applicant intended to kill or cause grievous bodily harm to the deceased.  As noted earlier, it was in that context, namely of the applicant’s intention, that many of the suggestions and invitations were made to the jury in the prosecution’s closing speech.  That was entirely proper.  By contrast, in an attempt, no doubt, to adduce evidence to satisfy the jury of the first limb of provocation, namely that the applicant had lost his self‑control in the face of the provocative words of his wife, Mr Boyton had invited Dr Foo to comment on the statement made in the prosecution’s opening that there had been a “frenzied attack” on the deceased.[60]  In fact, that phrase had not been used in opening.  In response, Dr Foo said only that “…it was a struggle”.

56.The issue that arose in respect of the second limb of provocation was whether or not the provocation would or might have caused an ordinary person, placed in the same situation as the defendant, to lose self‑control and cause the victim’s death with the intention of doing so or at least with an intention to cause really serious bodily harm.

57.We are satisfied that in his closing speech Mr Turnbull suggested to the jury that, having regard to the scale of the actual retaliation by the applicant, the jury could be satisfied that the response of the applicant went beyond that to which a person with ordinary powers of self‑control would have resorted.  Clearly, that was an invitation to the jury to take an impermissible line of reasoning identified in the judgment of Court of Final Appeal in HKSAR v Liang Yaoqiang.

58.Not having available to him the judgment of the Court of Final Appeal in HKSAR v Liang Yaoqiang the judge did not direct the jury not to take that impermissible line of reasoning.  In light of the judgment, that was a material misdirection by omission.  In those circumstances, clearly there was a risk that the jury might have adopted the impermissible line of reasoning.

Conclusion

59.In the result, we were satisfied that the joint submission of the parties that the appeal ought to be allowed and the conviction quashed was well made.  For the reasons that we have given, we allowed the application for leave to appeal against conviction, and treating the hearing of the application as the hearing of the appeal, we allowed the appeal and quashed the conviction.

Retrial

60.Understandably, and most realistically, Ms Draycott did not oppose the respondent’s application for an order that the applicant be retried.  We were satisfied that it was appropriate to make that order.  Accordingly, we ordered that the applicant be retried on the same count on a fresh indictment which is to be filed with the Court within 14 days hereof and that the matter come before the Listing Judge for the fixing of trial dates within 28 days hereof.  There being no application for bail pending the retrial, we remanded the applicant in custody pending his retrial.

Mr William Tam, SC, SADPP and Mr Ira Lui, SPP, of the Department of Justice, for the respondent

Ms Charlotte Draycott, SC, instructed by Eric Cheung & Lau, assigned by Director of Legal Aid, for the applicant