Read the full judgment text of FACC 5/2021 on BabelCite. This Court of Final Appeal judgment was delivered on 21 July 2021 before 張舉能 (Chief Justice), 李義 (Permanent Judge), 霍兆剛 (Permanent Judge), 鄧國楨 (Non-Permanent Judge), 范禮全 (Non-Permanent Judge).
Criminal law – murder – provocation – diminished responsibility – exercise of discretion to order retrial under section 83E(1) of Criminal Procedure Ordinance (Cap 221) – killing of cohabiting partner with knife inflicting approximately 213 stab wounds on 12 September 2009 inside shared flat – no eyewitnesses – defence of provocation based on allegations of infidelity and discovery of used condoms in rubbish bin – first trial conviction (2010) quashed by Court of Appeal (2013) due to inadmissible hearsay evidence – second trial conviction (2014) quashed by Court of Final Appeal (2017) due to misdirection on section 4 of Homicide Ordinance (Cap 339) – third trial (2018) introduced new diminished responsibility defence supported by psychiatric evidence from Dr Wong – conviction quashed by Court of Appeal (2020) for trial judge's failure to direct jury on relevance of psychiatric evidence to loss of self-control issue – Court of Appeal majority (Macrae VP and Sit J) ordered third retrial (fourth trial) with McWalters J dissenting – whether majority erred in treating defence counsel's failure to raise relevance of psychiatric evidence as deliberate strategic decision weighing against appellant – no basis to single out defence counsel when trial judge, prosecution counsel and defence counsel all equally failed to recognise relevance – suggested strategic advantage not identifiable – whether majority erred in treating late introduction of diminished responsibility defence as weighing against appellant – reasonably arguable defence supported by expert evidence and appellant entitled to raise it – whether majority erred in assessing strength of prosecution case – provocation defence at least reasonably arguable, murder conviction not inevitable – whether third retrial order violated Article 11(2)(c) of Hong Kong Bill of Rights right to trial without undue delay – court declined to decide separately as it was exercising discretion afresh – substitution of manslaughter conviction on grounds of provocation appropriate given exceptional circumstances of three trials, two Court of Appeal appeals and two CFA appeals spanning nearly twelve years – consideration of defendant's interest, custodial period, public interest and strength of prosecution case – appellant sentenced to term resulting in immediate release given nearly twelve years in custody far exceeds sixteen-year maximum for manslaughter
Legal issues: Defence counsel's conduct as factor in retrial discretion · Late introduction of diminished responsibility defence · Strength of prosecution case · Right to be tried without undue delay under Article 11(2)(c) HKBOR · Substitution of manslaughter conviction for murder
Outcome: Appeal allowed; third retrial order set aside; substituted conviction of manslaughter on grounds of provocation; appellant sentenced to a term that results in immediate release.
Cited by 7 cases · Cites 13 cases