R. v. Leung Ka Fai

CACC000228/1991

HEADNOTE

1. Reminder to judges that the decision of the Privy Council in Beckford v. R. (1987) 85 Cr. App. R. 378 has overtaken its earlier decision in Palmer v. R. (1971) 55 Cr. App. R. 223 in respect of the law on self defence. Per Lord Griffths at p.387:

"....the test to be applied for self defence is that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another" (emphasis supplied).

2.    Advice to judges that in cases involving self induced provocation it is preferable to direct the jury in accordance with the decision of the Court of Appeal in England in Johnson (1989) 89 Cr. App. R. 148 instead of that of the Privy Council in Edwards v. R. [1973] AC 648; (1972) 52 Cr. App. R. 157. See pages 12 to 15 of judgment in present case.

3.    A direction in law should be clear and unambiguous and should conform as closely as possible with what has been approved as correct by the relevant appellate court.

Having once given a clear and correct direction it is not necessary to repeat it either in the same words or, in substance, by using different words, unless the jury ask for further directions.

A long and complicated summing up is more likely to confuse than to enlighten a jury.

-----------------------

Coram: Hon. Silke, V.-P., Kempster, and Macdougall, JJ.A.

Date of hearing: 23 January 1992

Date of judgment: 26 February 1992

------------------------------------------------------

JUDGMENT  OF  THE  COURT

-------------------------------------------------------

Macdougall, J.A.:

1. The applicant was convicted of the murder of Chung Hon-hay after a trial before Hooper J. and a jury. He now applies for leave to appeal against that conviction.

2. The body of the deceased was discovered at about 6.10 a.m. on 23 November 1989 at the Lower Shing Mun Reservoir in Sha Tin. It had sustained numerous serious cut and stab wounds. The police investigation which followed led to the applicant who made a number of statements under caution. It was on the last of these, exhibit P16, and a video recorded reconstruction of the crime by the applicant, exhibit P18, that the prosecution principally relied at the trial.

3. In the statement, P16, the applicant referred to a quantity of walkie talkie radios that he had mentioned in the earlier statements that he had made. He said that he had agreed to sell these radios to the deceased and had been paid a deposit for them, but that before the deceased took delivery of them they were sold to a third party. In an attempt to solve the problem that had thus arisen, he made up a batch of bogus goods consisting of empty boxes, placed them in a van and went to see the deceased "intending to stall for time as long as I could". However, the ruse did not succeed. After driving around for some time with the applicant in the van, the deceased alighted in order to inspect the boxes in the rear compartment. On finding that he had been deceived, the deceased became very angry and threatened to beat the applicant and have him arrested. Following this, the deceased physically assaulted him. The applicant became frightened and took out a knife, which he was carrying with him in the expectation that the deceased would become violent, and tried to stab him. The two men struggled with each other. It was at this stage that the applicant, being very frightened and bewildered, lost control of himself and stabbed the deceased "indiscriminately".

4. At the video recorded reconstruction of the crime the applicant described how the deceased, finding that he had been deceived, began scolding the applicant, demanded the return of the deposit he had paid, and struck the applicant. The applicant then went and took up a knife from. the middle seat of the van, chased the deceased and stabbed him once. The two men struggled with each other until the deceased broke free and ran away. However, the applicant pursued and caught him. They punched and kicked each other until the deceased was "unable to stand any longer" and fell to the ground. Then, according to the applicant, "I went berserk; I poked and stabbed indiscriminately with the knife. Following this I became much frightened."

5. At the close of the Crown case the applicant elected to give evidence. He admitted that the deceased, on finding that the applicant had deceived him, had good reason to be angry with him. Notwithstanding his justifiable annoyance, the deceased began acting unreasonably and said "Even if you are going to die, you still have to get [the radios] back, you who are going to be doomed." He also threatened to demolish the applicants' hawker's stall. The two men then began a fight, during the course of which the applicant boarded the van through the side door in order to fetch a screwdriver from a camera bag which he had brought with him, with the object of using it to frighten the deceased and so stop him from beating him. The applicant withdrew from the bag what he thought was the screwdriver, waved it at the deceased and kicked at him. He then noticed that he had blood on his face, and suddenly realised that he was holding a knife, not a screwdriver.

6. His explanation for the presence of the knife in the camera bag was that earlier that morning, when passing a cutlery shop and remembering that he had no knives at home, he bought two knives and a chopper and placed them in his camera bag. On arriving home and having telephoned the deceased, he then went to meet him without noticing that he had left a knife in the camera bag.

7. When he realised at the scene of the killing that he was holding a knife, he became very frightened and wanted to drive away in the van. However, the deceased seized hold of him by the back of his collar and began beating him. They fought each other. The applicant then went "crazy", "was at a loss" and "could not control" himself. The deceased kicked him to the ground where both struggled for possession of the knife. The applicant then managed to get to his feet and stabbed the deceased "several times" while he was "half squatting" on the ground.

8. The medical evidence, which was admitted as proof by formal admission pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221, was that the deceased sustained nine cut and ten stab wounds. All stab wounds, any one of which would have been fatal, were inflicted on the chest and abdominal region.

9. Notwithstanding that the only defence urged upon the jury by defence counsel was that of provocation, the judge, very properly, in the light of the evidence before the jury, directed them on the defence of self-defence. However, without any suggestion or request from either the Crown or the defence, he also not only directed the jury that the evidence gave rise to the possibility that the deceased's death could have been caused by an accident, but left it open to them to return a verdict of manslaughter on the basis that the applicant had done an unlawful and dangerous act in waving at the deceased what he said he thought to be a screwdriver.

10. The principal ground advanced by Mr. McCoy, who appeared on behalf of the applicant in this court but not in the court below, was that the judge repeatedly misdirected the jury as to the law on self-defence by framing the test which they were to apply in objective instead of subjective terms.

11. The judge's initial direction, which appears at pages 13 to 15 of the transcript, was as follows:

"    A man who is attacked or assaulted in circumstances which lead him to believe that his life is in danger or that he might suffer harm, or who is set upon by another, is entitled, in law, to use such force as on reasonable grounds he believes is necessary to resist the attack and to prevent harm to himself, he is then acting in self-defence. If he fears for his life and if in using reasonable force he kills his assailant, he is not guilty of any crime even if his killing is intentional. If he fears he would be injured but not to the extent he would lose his life, then provided he uses reasonable force to prevent that injury, his assault on his assailant is excusable, but it must be reasonable having regard to the circumstances. So, if he formed the intention to kill the other person on the basis that it was the only way in which he could protect himself from suffering harm, he would be acting in self-defence and would not be guilty of any crime, but his action would have to be reasonable in the circumstances at the time.

The defence of self-defence is subject always to the accused's act being done in self-defence as well as being reasonable in the circumstances so far as he was aware having regard to the conditions prevailing at the time.

There is all the difference in the world between fighting someone in self-defence and fighting someone because of a grudge. The force used by the accused must have been exerted to protect himself and not prompted by any desire to take revenge or punish the victim. In deciding whether the accused is acting in self-defence, regard must be had to all the circumstances of the case including an opportunity for the accused to retreat. If you find there was such an opportunity, then that would be a fact for you to consider in determining whether this was a fight in self-defence or not.

The question that you will ask yourself in this: is it possible that the accused was acting in self-defence and if so, did he do no more than he thought was reasonably necessary in the circumstances to protect himself, or has he been proved by the prosecution to have been not acting in self-defence and to have gone further than was reasonable in defending himself and in fact punishing the victim? If the defendant chased after the deceased or if excessive force was used, this may afford evidence that it was not done in self-defence and was hence unlawful. However, you should remember that a person who is defending himself against being killed or seriously wounded or being wounded in one form or another cannot always weigh to a nicety what he should do and what he should not do in the circumstances or what is always the appropriate amount of force commensurate with the attack which he is receiving upon himself. If you thought that in a moment of unexpected anguish, a person attacked had only done what he honestly and instinctively thought was necessary, that would be the most potent evidence that only reasonably defensive action had been taken.

Finally, on this question of self-defence, it follows from what I have told you already that it is not incumbent on the accused to prove that he was acting in self-defence, the burden is on the Crown to prove beyond reasonable doubt that he was not.

Now, even the defence, really, are not asking in this case for a complete acquittal, but I mention that to you because it has been mentioned before and I think it should be mentioned again. Now, if you are satisfied beyond reasonable doubt that the defendant was not acting in self-defence or had gone beyond what was reasonable in self-defence, then he would have killed the deceased unlawfully, and you will then have to go on to consider the other ingredients of murder which I have mentioned, that is that he had the intention at the time of the killing to either kill or to cause grievous bodily harm. If you found that he did, then you could convict the defendant of murder."

12. Later, when directing the jury on the possibility of their returning a verdict of guilty of manslaughter on the basis that the applicant had done an unlawful and dangerous act - a direction which, on the evidence given, we consider to have been inappropriate - the judge made the following reference to self-defence:

"    You would have to be satisfied that the accused was acting unlawfully, for example, fighting with the deceased out of revenge and not in self-defence or by exceeding self-defence, in other words, using more force than was reasonably necessary in his defence."

13. Then, near the conclusion of a very long summing up which occupied 72 pages of the transcript, the judge summarised the defences that were open to the jury. He said this about self-defence:

"    Remember the burden of proof is on the Crown to prove the defendant guilty beyond reasonable doubt. First, you should consider whether there is a reasonable possibility that he acted in self-defence having regard to what a reasonable man would have done in the circumstances. If so, he is not guilty because the killing would not be unlawful. However, even defence counsel do not ask for an outright acquittal in this case."

14. Mr. McCoy submitted that these directions did not accord with the law on self-defence as laid down by the Privy Council in Beckford v. R. (1987) 85 Cr. App. R. 379, a decision to which another division of this court recently made reference in R. v. Man Wai-keung (unreported) Criminal Appeal 403 of 1990. In delivering the opinion of the Board Lord Griffiths said at page 387:

" ..... the test to be applied for self-defence is that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another."

15. Their Lordships approved the following passage from the judgment of Lord Lane LCJ in Williams v. R. (1984) 78 Cr. App. R. 276 at 281:

"The reasonableness or unreasonableness of the defendant's belief is material to the question of whether the belief was held by the defendant at all. If the belief was in fact held, its unreasonableness, so far as guilt or innocence is concerned, is neither here nor there. It is irrelevant. Were it otherwise, the defendant would be convicted because he was negligent in failing to recognise that the victim was not consenting or that a crime was not being committed and so on. In other words the jury should be directed first of all that the prosecution have the burden or duty of proving the unlawfulness of the defendant's actions; secondly, if the defendant may have been labouring under a mistake as to the facts, he must be judged according to his mistaken view of the facts; thirdly, that is so whether the mistake was, on an objective view, a reasonable mistake or not.

In a case of self-defence, whether self-defence or the prevention of crime is concerned, if the jury came to the conclusion that the defendant believed, or may have believed, that he   was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime, then the prosecution have not proved their case. If however the defendant's alleged belief was mistaken and if the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected.

Even if the jury come to the conclusion that the mistake was an unreasonable one, if the defendant may genuinely have been labouring under it, he is entitled to rely upon it."

16. It was with regard to these statements of the law that Mr. McCoy invited us to consider the directions given by the judge. He complains that although the judge referred to a subjective element several times in his initial lengthy direction on self-defence, those references were misleading and that the overall effect of the direction would have been to produce confusion in the minds of the jurors.

17. Mr. McCoy submitted that the first reference, "A man..... is entitled in law to use such force as on reasonable grounds he believes is necessary", can only mean, and would have been understood by the jury to mean, that for the defence of self-defence to succeed there must be reasonable grounds for the accused's belief that the force he used was necessary. That, plainly, is not the law. Even if the jury were of the view that there were no reasonable grounds for the use of force, they would be obliged to acquit the applicant if they thought, that it was reasonably possible that (a) the applicant had held an honest belief that certain circumstances prevailed at the time and (b) that the force he used would have been reasonable in those circumstances.

18. The passages which follow immediately after that direction, "if in using reasonable force he kills his assailant" and "provided he uses reasonable force to prevent that injury .... but it must be reasonable having regard to the circumstances", serve only to reinforce the initial misdirection.

19. Mr. Duckett, who appeared for the Crown in this court but not in the court below, directed our attention to , the two other passages which followed shortly after the brief excerpts to which we have just referred. He focussed on the underlined words:

"The defence of self-defence is subject always to the accused's act being done in self defence as well as being reasonable in the circumstances so far as he was aware having regard to the conditions prevailing at the time" and

"The question that you will have to ask yourself is this: is it possible that the accused was acting in self-defence and, if so, did he do no more than he thought was reasonably necessary in the circumstances to protect himself, ...."

It was Mr. Duckett's contention that although these two directions did not follow the precise words of the test propounded in Beckford, they adequately stated the law on self-defence.

20. Mr. McCoy made no special criticism of the first of these passages, but submitted that the words "or has he been proved by the prosecution to have been not acting in self-defence and to have gone further than was reasonable in defending himself and in fact punishing the victim?", which immediately follow the second of these two passages, presented an alternative which reintroduced an objective test. The question was not whether the applicant had gone further than was reasonable in defending himself; it was whether it was reasonably possible that he might honestly have believed the circumstances to be what he said he thought they were, and, if so, a second question followed: would the force he used have been reasonable in those circumstances?

21. The erroneous directions were reinforced, contended Mr. McCoy, by the judge's final words in his initial direction on self-defence:

"  Now, if you are satisfied beyond reasonable doubt that the defendant was not acting in self-defence or had gone beyond what was reasonable in self-defence, then he would have killed the deceased unlawfully."

22. It was plain throughout the judge's directions that "not acting in self-defence" in this context referred to a finding by the jury that the applicant's evidence that the deceased had attacked him was completely false. That being so, the balance of the passage meant, given that it was reasonably possible that the deceased had attacked the applicant, that the test then to be applied was whether the applicant had gone beyond what was reasonable in self-defence. Mr. McCoy submitted that this was clearly setting an objective test.

23. The judge's penultimate reference to self-defence at page 19 of the transcript, although set in the context of his direction on the possible verdict of manslaughter on the basis of an unlawful and dangerous act, at best, failed to correct the earlier erroneous directions and, at worst, added further weight to them.

24. If that were not enough, submitted Mr. McCoy, the final direction on self-defence, given in summary form with the directions on the other defences left to the jury clearly sent them into the jury room with the wrong test ringing in their ears:

"First, you should consider whether there is a reasonable possibility that he acted in self-defence having regard to what a reasonable man would have done in the circumstances."

25. Mr. McCoy frankly acknowledged that in deciding whether an accused honestly believed the circumstances to be what he said they were, the jury were fully entitled to use their common sense and experience of human nature, and that the judge was likewise entitled to direct their attention to those features of the evidence that would have made such a belief more or less probable. If it were otherwise, they would be obliged to accept blindly what an accused says, and that is undoubtedly not so. However, if that is the meaning that the judge intended by that passage to convey to the jury, the words that he used would not have achieved his objective, for standing as they were, stark and unexplained, they could only have led the jurors to believe that the test was an objective one.

26. In order for the applicant to succeed on this ground of appeal, this court need only conclude that, taken as a whole, the judge's directions on self-defence were sufficiently confusing to give rise to a feeling that the conviction is unsafe or unsatisfactory. We find it impossible to avoid that conclusion. We therefore grant the application for leave to appeal, treat this hearing as that of the appeal and allow the appeal on this ground. The conviction is quashed and the sentence set aside.

27. In the light of the foregoing we think it salutary to repeat the advice that we have given on previous occasions. A direction in law should be clear and unambiguous and should conform as closely as possible with what has been approved as correct by the relevant appellate court. In the present case it would have been a simple matter to have followed the succinct statement of the law by Lord Griffths in Beckford at page 381 and cited above.

28. Once a judge has given a clear and correct direction it is not necessary for him to repeat it either in the same words or, in substance, by using different words, unless the jury ask for further guidance. If the case does not require it, a long and complicated summing up is more likely to confuse than to enlighten a jury.

29. Before taking leave of this appeal, we think, in view of the advice which we are about to give, that we should deal with a further ground argued by Mr. McCoy. It was his submission that in dealing with the defence of provocation the judge wrongly directed the jury, in accordance with Edwards v. R. [1973] AC 648; (1972) 52 Cr. App. R. 157, that the applicant was not entitled to rely on the predictable results of his own conduct as constituting provocation sufficient to reduce the crime from murder to manslaughter.

30. Mr. McCoy made what he frankly acknowledged was a bold submission that, because of the decision of the House of Lords in DPP v. Camplin (1978) 67 Cr. App. R. 14., Edwards no longer represented a true statement of the law. In support of this contention he referred to Johnson (1989) 89 Cr. App. R. 148 where Watkins L.J. in delivering the judgment of the court had this to say at page 151:

"We were referred to the decision of the Privy Council in Edwards v. R. (1973) 57 Cr.App.R. 157, [1973] A.C. 648. In that case the trial judge had directed the jury thus:

'In my view the defence of provocation cannot be of any avail to the accused in this case... it ill befits the accused, having gone there with the deliberate purpose of blackmailing this man - you may well think it ill befits him to say out of his own mouth that he was provoked by any attack. In my view the defence of provocation is not one which you need consider in this case.'

The full Court in Hong Kong held that this direction was erroneous. The Privy Council agreed with the full Court. On the particular facts of the case Lord Pearson, giving the judgment of the Board, said (at pp.168 and 658):

'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 .... and the predictable results may include a considerable degree of hostile reaction by the person sought to be blackmailed; (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.'

Those words cannot, we think, be understood to mean, as was suggested to us, that provocation which is 'self-induced' ceases to be provocation for the purposes of section 3.

The relevant statutory provision being considered by the Privy Council was in similar terms to section 3. In view of the express wording of section 3, as interpreted in D.P.P. v. Camplin, which was decided after Edwards v. R. we find it impossible to accept that the mere fact that a defendant caused a reaction in others, which in turn led him to lose his self-control, should result in the issue of provocation being kept outside a jury's consideration. Section 3 clearly provides that the question is whether things done or said or both provoked the defendant to lose his self-control. If there is any evidence that it may have done, the issue must be left to the jury. The jury would then have to consider all the circumstances of the incident, including all the relevant behaviour of the defendant, in deciding (a) whether he was in fact provoked and (b) whether the provocation was enough to make a reasonable man do what the defendant did."

31. It seems that Watkins L.J. had in mind the following passage from the speech of Lord Diplock in Camplin at page 19:

"    Section 3 of the Homicide Act 1957 [section 4 of the Homicide Ordinance 1963] is in the following terms: 'Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury: and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.'

My Lords, this section was intended to mitigate in some degree the harshness of the common law of provocation as it had been developed by recent decisions in this House. It recognises and retains the dual test: the provocation must not only have caused the accused to lose his self-control but must also be such as might cause a reasonable man to react to it as the accused did. Nevertheless it brings about two important changes in the law. The first is: it abolishes all previous rules of law as to what can or cannot amount to provocation and in particular the rule of law that, save in the two exceptional cases I have mentioned, words unaccompanied by violence could not do so. Secondly it makes it clear that if there was any evidence that the accused himself at the time of the act which caused the death in fact lost his self-control in consequence of some provocation however slight it might appear to the judge, he was bound to leave to the jury the question, which is one of opinion not of law: whether a reasonable man might have reacted to that provocation as the accused did."

32. Mr. McCoy adopted a suggestion made by a member of this court that, since there was no reference to section 4 of the Homicide Ordinance either in the judgment of the Full Court in Hong Kong or of that of the Privy Council in Edwards, it is possible that the case was decided per incuriam. We think it inconceivable that the Full Court was unaware of the statutory provisions governing the law of provocation in Hong Kong or that the attention of their lordships in the Privy Council was not drawn to them. It may be, however, since no reasons were given by either the Full Court or the Privy Council as to how they reached their conclusion in the face of the clear terms of section 4, that they may not have had argument addressed to them on that specific point and therefore did not have the section at the forefront of their minds. Indeed, an examination of the arguments of counsel in the report of the case in [1973] AC 648 at pages 650 and 651 discloses no mention of any argument based on the effect of section 4.

33. Nonetheless, in view of the clear words of their Lordships in Edwards, we are unable to conclude that they did not mean what they said about self induced provocation. We are not prepared to take it upon ourselves to accept Mr. McCoy's invitation to hold, applying the principle laid down by the Privy Council in de Lasala v. de Lasala [1980] AC 546, that the decision of the House of Lords in Camplin resulted in the overturning of the judgment of the Privy Council in Edwards. The decision in Camplin did not refer to the case of Edwards, nor did it deal directly with the subject of self induced provocation.

34. However, it is difficult to resist the logic of the reasoning of the Court of Appeal in Johnson as to the application of section 3 of the Homicide Act (section 4 of the Homicide Ordinance) to provocation whether it be self induced or not. In the light of that-reasoning and the fact that the Privy Council in its judgment in Edwards did not specifically address itself to the terms of section 3, we think we would be justified, particularly since the decision in Johnson is more favourable to an accused, in advising trial judges henceforth to direct juries in accordance with that decision.

35. We shall now hear counsel on the question of an order for a retrial on a fresh indictment.

Representation:

Mr. A.P. Duckett, Q.C. & Mr. T.H. Casewell, Sr.C.C. for Crown Prosecutor

Mr. G. J. X. McCoy instructed by M/S Andy Lo & Co. for applicant