Luc Thiet Thuan and Others v. R.

CACC000027/1992

IN THE COURT OF APPEAL

1992 No. 27
(Criminal)

HEADNOTE

There was evidence that the Applicant was suffering from a mental disorder which affected his power of self-control. There was no evidence that the suggested provocation was directed towards any characteristic of the Applicant. The Court was satisfied that the law both in English and Hong Kong was that provocative acts or words can only be relied upon if they are directed towards a characteristic of the accused and that even though an accused may have a mental condition which lessens his self-control, he cannot rely upon provocation unconnected with his characteristic.

IN THE COURT OF APPEAL

1992 No. 27
(Criminal)

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Coram: Hon. Power, V.-P., Macdougall, V.-P. & Mortimer, J.A.

Date of hearing: 3 August 1993

Date of judgment: 26 August 1993

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J U D G M E N T

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Power, V.-P.:

1. This is the judgment of the Court.

2. The applicant Luc Thiet-thuan, together with Cheung Hoi-man and Lo Siu-kuen, faced one count of robbery and one count of murder. We will refer hereafter to the applicant as D1 and to the others as D2 and D3. The robbery count charged that on 16th February 1988 at Room 101, Tsz King Court Villa, Block A, On King Building, 81-85 Hop Yick Road, Yuen Long, New Territories, Hong Kong, the three defendants robbed Leung Shuk-man of a necklace, a gold ring and approximately $2,000 Hong Kong currency. The murder count charged that the three defendants on the same day and at the same place murdered Leung Shuk-man. They were tried before Ryan J. and a jury. D1 pleaded guilty to robbery in the course of the trial and was found guilty of murder. He was sentenced to imprisonment for eight years on the robbery count and to death on the murder count. He now seeks leave to appeal against those convictions.

3. Miss Draycott, who appeared both here and below for D1, outlined the facts as revealed by his evidence. After an unhappy childhood, he met the deceased when she was 15 and they began living together in what he said was a fond relationship. She, however, eventually left him. He became unhappy and unsettled and began to take drugs. Later, they resumed their intimate relationship, but he found her to be more mature and independent and, as a result of a quarrel over her heroin habit, she again disassociated herself from him. They still occasionally met, however, and had sex together. He became aware that she was running a small brothel, and at times, went to visit her there, usually when he was influenced by drugs. The fact that she was running a successful "business" caused him to develop distinct feelings of inferiority, and he began to make a nuisance of himself. She discouraged him from visiting her, and when he telephoned her, he was told by a man's voice to stop doing so. On New Year's Eve, the evening of her death, he went with D2 to collect a debt which he said she owed him and took a knife in case he had to protect himself from the man who was then associating with her.

4. He told of an argument culminating in insults and abuse from the deceased as a result of which "some heat had popped up in my head" and provoked him into a making violent attack on her.

5. Miss Draycott then referred to the evidence of Dr. Peter Lee, a chartered clinical psychologist and a senior lecturer in medical psychology at the University of Hong Kong. Dr. Lee said that after conducting test to assess intellectual function he found "a widely scattered profile" which meant "that Mr. Luk's various abilities are very unevenly distributed across the different sides of the brain. This pattern is generally indicative of some form of organic brain problem." He went on to say that although D1 had a high score on a visual-spatial construction task, he had a score well below average in a test of conceptual and abstract reasoning. He said that such a pattern of results would not be expected in normal individuals. His conclusion was that D1's ability "was noted to be impaired, especially in the left side of his brain and towards the frontal areas."

6. The next medical witness was Dr. Chan Chee-hung, a Bachelor of Medicine and Bachelor of Surgery and a member of the Royal College of Psychiatrists, U.K. He said that he had carried out an electro-encephalogram to record the electrical activities of D1's brain and found that a persistent slow wave was recorded in the left frontal central area of the brain which indicated a possibility of dysfunction in that area. He said that such waves are indicative of persons with a cerebral lesion and that there was a very good correlation between his EEG findings and Dr. Lee's test as to the site of the brain damage.

7. D1 told Dr. Chan, and repeated when giving evidence, that in 1987 he had undergone a personality change as a result of having been injured in a fall in which he lost consciousness. Prior to that incident he had been timid and fair-tempered, but since its occurrence he had had several episodes of responding irritably to minor provocation in which he felt "a sense of hot flush rising from the abdomen and a certain limit of frustration, tolerance was exceeded". He would then experience an inability to keep control and acted explosively. Dr. Chan made the following comment on that information:

"Such a description I would like to highlight certain points. One is that he had described several episodes and in all these episodes, the events happened in a rather similar and stereotypical way, that is, every time it goes on the same sequence. The action was an explosive one which was out of proportion to the provocation. And at each time he felt a sense of hot gas coming from the abdomen and that was a typical expression of an aura which would happen in some patient (sic) preceding an epileptic attack. However, he has no other manifestations of an epilepsy. These findings are often found in patients with an organic brain damage who found difficulty in controlling an impulse."

8. The prosecution called Dr. Tsang Fan-kwong who stated that he graduated from the University of Hong Kong in 1984 with degrees in Bachelor of Medicine and Bachelor of Surgery and that he was elected as a member of the Royal College of Psychiatrists, U.K. in 1990. This doctor said that after interviews of 30 minutes and 50 minutes he had found no evidence of mental disorder in the applicant. However, under cross-examination, the following exchange occurred:

"Q. You suggest that the abnormality in the EEG is at the left anterior temporal region?

A. Yes.

Q. That is the region immediately next to the frontal region which the other two doctors have mentioned?

A. Yes.

Q. Do you agree that in both the regions that had been mentioned the control of aggression is situated or don't you know?

A. Yes, I agree that, not only aggression.

Q. Other things as well certainly.

A. Yes."

The following passage is also relevant:

"Q. Do you agree, Doctor, that all that Dr. Chan has talked about is typical of this kind of quasi epileptical syndrome?

A. This is actually one of the symptoms for epilepsy or either for the episodic dyscontrol that we seldom diagnose epilepsy or episodic dyscontrol by base on single symptoms.

Q. No, of course not but it is one of the symptoms, isn't it?

A. Yes."

9. While conceding that it was a matter for the jury, Miss Draycott submitted that the above evidence raised an issue as to a mental disorder affecting the power of self control and that the jury should have been told that this was a matter to which they would have to give consideration when determining whether the prosecution had negatived provocation.

10. The trial judge, after dealing with diminished responsibility (s.3 of the Homicide Ordinance), directed the jury as to provocation in the following terms:

"The other defence that the 1st accused puts before you for consideration comes from section 4 of the Homicide Ordinance where it says: -

'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.'

The approach then to the question of provocation is two-fold. You will, first of all, have to apply a subjective test, whether the words or acts or a combination of them were such as to cause the 1st accused to suddenly and temporarily lose self-control, making him at the time so subject to passion as to make him for the moment not the master of his mind. So that is the first test that you will have to apply when you come to consider the defence of provocation. Were the acts, words, or a combination of them such as to cause the 1st accused to suddenly lose his self-control and not be at that moment the master of his mind?

If you are satisfied that this might have happened, then you have to go on and consider the object of the test, the other limb, which is, were the words or the acts or a combination of them which caused the 1st accused to suddenly lose control such that a reasonable person in those circumstances would have been provoked not only to lose his self-control but to react to the provocation in the way that the 1st accused did, that is, to stab Candy to death. If you think that a reasonable person may have so reacted, then the defence of provocation would have been established and the verdict would be one of manslaughter and not murder.

What then is the reasonable person that we are talking about when we look at this section? The reasonable person is one having the power of self-control to be expected of a person of the same sex and of the same age of the 1st accused but in other respects showing such of the accused's characteristics as you think would affect the gravity of the provocation to him.

If I can give you an example of such a characteristic. If a person was a dwarf and words of derision were put to him about the fact that he was a dwarf and he reacted to that, that might be considered by a jury to be provocation that is directed to a characteristic of the person, that is, something different from a normal person and that results in him losing his self-control.

In this case you have the 1st accused who was, I think, about 20 at the time of the offence, of Vietnamese race; who says that he was badly treated at home as a child, that he had as a result to leave home and fend for himself for a number of years as still a relatively young man, that he had to live quite rough during this time, that he had had a deep and fulfilling relationship with the deceased in the years before the killing and who says that he was still in love with her on 16 February 1988. Those are factors which you can take into account when you come to consider whether he was provoked and whether in the circumstances a person, a reasonable person with those characteristics would have reacted in the same way."

11. Miss Draycott stated that she had invited the judge to put the medical evidence which we have set out above before the jury telling them that if they thought that D1 might have had such a condition they should regard it as a characteristic. The judge had refused to do so.

12. The judge recited to the jury the exact terms of s.4 of the Homicide Ordinance which itself follows exactly s.3 of the English Homicide Act 1957.

13. Miss Draycott referred to R. v. Camplin (1978) AC 705 submitting that it interpreted s.3 in a way which introduced an important qualification to its words. Lord Diplock said that 716:

"My Lord, 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.

I agree with my noble and learned friend Lord Simon of Glaisdale that since this question is one for the opinion of the jury the evidence of witnesses as to how they think a reasonable man would react to the provocation is not admissible.

The public policy that underlay the adoption of the 'reasonable man' test in the common law doctrine of provocation was to reduce the incidence of fatal violence by preventing a person relying upon his own exceptional pugnacity or excitability as an excuse for loss of self-control. The rationale of the test may not be easy to reconcile in logic with more universal propositions as to the mental element in crime. Nevertheless it has been preserved by the Act of 1957 but falls to be applied now in the context of a law of provocation that is significantly different from what it was before the Act was passed.

Although it is now for the jury to apply the 'reasonable man' test, it still remains for the judge to direct them what, in the new context of the section, is the meaning of this apparently inapt expression, since powers of ratiocination bear no obvious relationship to powers of self-control. Apart from this the judge is entitled, if he thinks it helpful, to suggest considerations which may influence the jury in forming their own opinion as to whether the test is satisfied; but he should make it clear that these are not instructions which they are required to follow; it is for them and no one else to decide what weight, if any, ought to be given to them.

As I have already pointed out, for the purposes of the law of provocation, the 'reasonable man' has never been confined to the adult male. It means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today. A crucial factor in the defence of provocation from earliest times has been the relationship between the gravity of provocation and the way in which the accused retaliated, both being judged by the social standards of the day. When Hale was writing in the seventeenth century, pulling a man's nose was thought to justify retaliation with a sword: when Mancini v. Director of Public Prosecutions [1942] A.C. 1 was decided by this House, a blow with a fist would not justify retaliation with a deadly weapon. But so long as words unaccompanied by violence could not in law amount to provocation the relevant proportionality between provocation and retaliation was primarily one of degrees of violence. Words spoken to the accused before the violence started were not normally to be included in the proportion sum. But now that the law has been changed so as to permit of words being treated as provocation even though unaccompanied by any other acts, the gravity of verbal provocation may well depend upon the particular characteristics or circumstances of the person to whom a taunt or insult is addressed. To taunt a person because of his race, his physical infirmities or some shameful incident in his past may well be considered by the jury to be more offensive to the person addressed, however equable his temperament, if the facts on which the taunt is founded are true than it would be if they were not. It would stultify much of the mitigation of the previous harshness of the common law in ruling out verbal provocation as capable of reducing murder to manslaughter if the jury could not take into consideration all those factors which in their opinion would affect the gravity of taunts or insults when applied to the person whom they are addressed. So to this extent at any rate the unqualified proposition accepted by this House in Bedder v. Director of Public Prosecutions [1954] 1 W.L.R. 1119 that for the purposes of the 'reasonable man' test any unusual physical characteristics of the accused must be ignored requires revision as a result of the passing of the Act of 1957.

That he was only 15 years of age at the time of the killing is the relevant characteristic of the accused in the instant case. It is a characteristic which may have its effects on temperament as well as physique. If the jury think that the same power of self-control is not to be expected in an ordinary, average or normal boy of 15 as in an older person, are they to treat the lesser powers of self-control possessed by an ordinary, average or normal boy of 15 as the standard of self-control with which the conduct of the accused is to be compared?

It may be conceded that in strict logic there is a transition between treating age as a characteristic that may be taken into account in assessing the gravity of the provocation addressed to the accused and treating it as a characteristic to be taken into account in determining what is the degree of self-control to be expected of the ordinary person with whom the accused's conduct is to be compared. But to require old heads upon young shoulders is inconsistent with the law's compassion to human infirmity to which Sir Michael Foster ascribed the doctrine of provocation more than two centuries ago. The distinction as to the purposes for which it is legitimate to take the age of the accused into account involves considerations of too great nicety to warrant a place in deciding a matter of opinion, which is no longer one to be decided by a judge trained in logical reasoning but is to be decided by a jury drawing on their experience of how ordinary human beings behave in real life."

14. It is clear from what Lord Diplock said that he was satisfied that the ordinary person to be considered was an ordinary person of the age of the accused. Lord Diplock went on:

"In my opinion a proper direction to a jury on the question left to their exclusive determination by section 3 of the Act of 1957 would be on the following lines. The judge should state what the question is using the very terms of the section. He should then explain to them that the reasonable man referred to in the question is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but also whether he would react to the provocation as the accused did."

15. Lord Morris, at 721, stated what he considered the correct approach in the following terms:

"The jury had to consider whether a young man of about the same age as the accused but placed in the same situation as that which befell the accused could, had he been a reasonable young man, have reacted as did the accused and could have done what the accused did."

16. The view of Lord Simon, at 727, was:

"... that the standard of self-control which the law requires before provocation is held to reduce murder to manslaughter is still that of the reasonable person (hence his invocation in section 3); but that, in determining whether a person of reasonable self-control would lose it in the circumstances, the entire factual situation, which includes the characteristics of the accused, must be considered."

17. It is important to note that in Camplin, the only question with which the court was concerned was whether age could be taken into account when applying the "reasonable man" test. There was no discussion as to the nature or content of the provocation. It was the evidence of the appellant that the deceased had buggered him and had then laughed at him whereupon he had lost his self-control and fatally attacked the deceased with a chapati pan. It is of significance, given the argument advanced by Miss Draycott, to note that only Lord Simon referred to the New Zealand case of R. v. McGregor [1962] N.Z.L.R. 1069. He said:

"In the exceptional circumstances whereby the reasoning of a decision of your Lordships' House, and that of the authorities on which it was founded, has been undermined by a subsequent Act of Parliament (even though the decision has not been clearly and expressly abrogated), I think that your Lordships are justified in saying that Bedder should no longer be followed. I think that the law as it now stands in this country is substantially the same as that enacted in the New Zealand Crimes Act 1961, section 169 (2), as explained by the Court of Appeal of New Zealand in Reg. v. McGregor [1962] N.Z.L.R. 1069."

18. The first thing to note when examining the decision in McGregor is that s.169 of the Crimes Act 1961 is very differently worded from s.4 of the Homicide Ordinance.

19. Section 4 of the Homicide Ordinance reads:

"4. 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."

The New Zealand section reads as follows:

"169. Provocation -

(1) Culpable homicide that would otherwise be murder may be reduced to manslaughter if the person who caused the death did so under provocation.

(2) Anything done or said may be provocation if -

(a) In the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control; and

(b) It did in fact deprive the offender of the power of self-

control and thereby induced him to commit the act of homicide.

(3) Whether there is any evidence of provocation is a question of law.

(4) Whether, if there is evidence of provocation, the provocation was sufficient as aforesaid, and whether it did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide, are questions of fact."

20. It is important to note that that section expressly states that "the characteristics of the offender" must be imported into the "ordinary person" who is to be used when assessing the powers of control. It may also be of importance to note that in New Zealand, there is no statutory provision providing for a defence of diminished responsibility whereas in Hong Kong s.3 which provides for such a defence stands side by side with s.4 which deals with provocation. Finally, it must be noted that Lord Simon having referred to McGregor stated that the law in England was "substantially the same as that enacted in the New Zealand Crimes Act 1961, section 169(2)".

21. Miss Draycott referred us to the following passage in the judgment of the Court in R. v. McGregor delivered by North J. at 1081:

"The offender must be presumed to possess in general the power of self-control of the ordinary man, save insofar as his power of self-control is weakened because of some particular characteristic possessed by him. It is not every trait or disposition of the offender that can be invoked to modify the concept of the ordinary man. The characteristic must be something definite and of sufficient significance to make the offender a different person from the ordinary run of mankind, and have also a sufficient degree of permanence to warrant its being regarded as something constituting part of the individual's character or personality. A disposition to be unduly suspicious or to lose one's temper readily will not suffice, nor will a temporary or transitory state of mind such as a mood of depression, excitability or irascibility. These matters are either not of sufficient significance or not of sufficient permanency to be regarded as 'characteristics' which would enable the offender to be distinguished from the ordinary man. The 'unusually excitable or pugnacious 'individual' spoken of in R. v. Lesbini ([1914] 3 K.B. 1116) is no more entitled to special consideration under the new section than he was when that case was decided. Still less can a self-induced transitory state be relied upon, as where it arises from the consumption of liquor. The word 'characteristics' in the context of this section is wide enough to apply not only to physical qualities but also to mental qualities and such more indeterminate attributes as colour, race and creed. It is to be emphasised that of whatever nature the characteristic may be, it must be such that it can fairly be said that the offender is thereby marked off or distinguished from the ordinary man of the community."

She refers particularly to the reference to "mental qualities" and submits that a mental condition weakening self-control would be covered by that term. However, North J. went on in R. v. McGregor to state:

"Moreover, it is to be equally emphasised that there must be some real connection between the nature of the provocation and the particular characteristic of the offender by which it is sought to modify the ordinary man test. The words or conduct must have been exclusively or particularly provocative to the individual because, and only because, of the characteristic. In short, there must be some direct connection between the provocative words or conduct and the characteristics sought to be invoked as warranting some departure from the ordinary man test."

He went on:

"Special difficulties, however, arise when it becomes necessary to consider what purely mental peculiarities may be allowed as characteristics. In our opinion it is not enough to constitute a characteristic that the offender should merely in some general way be mentally deficient or weak-minded. To allow this to be said would, as we have earlier indicated, deny any real operation to the reference made in the section to the ordinary man, and it would, moreover, go far towards the admission of a defence of diminished responsibility without any statutory authority in this country to sanction it. There must be something more, such as provocative words or acts directed to a particular phobia from which the offender suffers. Beyond that, we do not think it is advisable that we should attempt to go."

22. Miss Draycott conceded that these words present considerable difficulty for her.

23. She referred to R. v. Taaka [1982] 2 N.Z.L.R. 198, the headnote of which indicates that the conduct which aroused the accused occurred about a fortnight before the killing when there was an incident between the deceased, who was a cousin of the accused, and the accused's wife which was construed by the accused as an attempted rape by the cousin.

24. The trial judge refused to leave to the jury psychiatric evidence that because of his personality and background, the accused had a characteristic which rendered him likely to brood for a longer period than a normal person and that he also had an obsessively compulsive personality which was directed to his child, his wife and his cousin. It was suggested that the cousin's act was directed towards this characteristic which was not a transitory state but was a pathological part of the accused's personality.

25. In the judgment of the court delivered by Cooke J. he stated at 201:

"Mr. Gibson stressed in his argument in this Court that the appellant's three major relationships in life were with his wife, his young daughter (who is handicapped both physically and mentally) and Hongi (the cousin). The substance of his argument was that, in the light of those facts and the appellant's personal history and race, the insult of Hongi's conduct would be felt particularly deeply by him, because of his particular characteristics. So much so that the self-control of a normal person might not have been enough to restrain him from reacting to the provocation initially given 13 days previously but revived by the fight on the night of the party.

We do not propose to detail the psychiatric evidence further. We think that it is capable of supporting an inference that the appellant's characteristics could cause him to feel the insult of Hongi's conduct unusually deeply and impel him to lose self-control and take public revenge for an insult publicly known. Counsel for the Crown indeed accepted in this Court that it would be evidence of 'characteristics' relevant under s.169(2)(a). This kind of question, arising from the attempt of the New Zealand legislature in that section to marry objective and subjective tests, is notoriously difficult, as witness R. v. McGregor and R. v. Tai. But in so far as the Judge here ruled that the evidence did not go to relevant 'characteristics' we must respectfully disagree."

The appeal was allowed and a new trial was ordered. This authority does not, however, take the matter further as it is clear that the provocation was directed to the characteristic.

26. Miss Draycott then referred to R. v. Leilua [1986] N.Z. Recent Law 118. In that appeal, a medical report from a psychiatrist who had seen the accused some 18 months after conviction was placed before the Court of Appeal. The report suggested that the appellant may have been suffering from post-traumatic stress disorder (PSD) which is a condition recognized by medical science. The court stated at p.119:

"The condition is characterized as involving a tendency to lose self-control and to abnormal reactions. PSD has been found in concentration camp survivors, combat veterans, terrorist hostages and rape victims. Dr. White concluded that the appellant met the diagnostic criteria for PSD possibly related to events of his childhood and noted that he had reported symptoms consistent with the condition and not consistent with alcohol, drug abuse, organic mental disorder, or schizophrenia."

The appellant's mental condition was in no way related to the provocation as the appellant had been provoked by the sight of the deceased destroying letter boxes including one owned by the appellant's cousin. The Court of Appeal was satisfied that the new evidence was too speculative and was lacking in cogency sufficient to warrant its reception but it "did accept that a chronic disorder of this type, if it rendered the sufferer particularly susceptible to certain kinds of provocation, could amount to a characteristic under s.169 of the Crimes Act 1961." Miss Draycott submitted that this recognizes that a characteristic towards which the provocation was not directed should nonetheless be taken into account when considering the loss of self-control.

27. Miss Draycott went on to refer to R. v. McCarthy [1992] N.Z.L.R. 550 and to the judgment of the court delivered by Cooke P. at 558 where he stated:

"In our view it has to be respectfully said, in the light of judicial experience of the operation of s.169, that the added and obiter observations in McGregor go somewhat too far and add needless complexity to the application of the section. We do not think that they have been found workable or followed closely in practice. A racial characteristic of the accused, his or her age or sex, mental deficiency, or a tendency to excessive emotionalism as a result of brain injury are, for the purposes of s.169(2)(a), examples of characteristics of the offender to be attributed to the hypothetical person. In a case where any of them apply, the ordinary power of self-control falls to be assessed on the assumption that the person has the same characteristics. The question under the paragraph is whether a person with the ordinary power of self-control would in the circumstances have retained self-control notwithstanding such characteristics. It can be a difficult question, like others which are left to the common sense of juries, but we cannot avoid thinking that the difficulty is unjustifiably aggravated by the suggestion that provocation must be 'directed at' a particular characteristic. We evidently share with the jury at the first trial of this case difficulty in comprehending or applying that suggestion."

28. Miss Draycott submitted that this case was clear authority for the proposition that a mental condition resulting in weakened self-control should be taken into account as a characteristic of the ordinary person when considering provocation and that it was not necessary that the provocation be directed at that characteristic. Given that this is the law in New Zealand, the question for our determination is whether it is also the law in England and in Hong Kong.

29. In R. v. Newell (1980) 71 Cr.App.R. 331, the Lord Chief Justice, delivering the judgment of the court, when referring to the passage in McGregor set out above said at 340:

"That passage, and the reasoning therein contained, seem to us to be impeccable. It is not only expressed in plain, easily comprehended language; it represents also, we think, the law of this country as well as that of New Zealand. In the present case the only matter which could remotely be described as a characteristic was the appellant's condition of chronic alcoholism. Assuming that that was truly a characteristic (and we expressly make no determination as to that), nevertheless it had nothing to do with the words by which it is said that he was provoked. There was no connection between the derogatory reference to the appellant's girl friend and the suggestion of a possible homosexual act and his chronic alcoholism. It had nothing at all to do with the words by which it is said that he was provoked.

If the test set out in McGregor is applied, the learned judge in the instant case was right in not inviting the jury to take chronic alcoholism into account on the question of provocation."

This was, in 1980, a clear affirmation of the necessity that the provocation be directed at the characteristic. We were finally referred to R. v. Ahluwalia [1992] 4 All E.R. 889 which made no mention of R. v. McCarthy, although it was heard in July 1992 some four months after the decision in McCarthy. In Ahluwalia the defendant was said to be suffering from "a chronic post-traumatic stress disorder", a condition more commonly known as the "battered woman syndrome". It was suggested that the judge had failed to direct the jury that this was a characteristic which could be taken into account when applying the reasonable man test to provocation. The court held that there was no evidence before the judge of such condition and that he was right to sum up as he did.

30. The Lord Chief Justice, at 897, referred to R. v. Newell and adopted the passage from the judgment of North J. in R.v. McGregor which includes the words:

"Moreover, it is to be equally emphasised that there must be some real connection between the nature of the provocation and the particular characteristic of the offender by which it is sought to modify the ordinary man test ... Special difficulties, however, arise when it becomes necessary to consider what purely mental peculiarities may be allowed as characteristics."

He went on:

"English cases concerned with the 'reasonable man' element of provocation, and examples given by judges, have tended to focus on physical characteristics. Thus age, sex, colour, race and any physical abnormality have been considered. However, the indorsement of the New Zealand authority in R. v. Newell shows that characteristics relating to the mental state or personality of an individual can also be taken into account by the jury, providing they have the necessary degree of permanence.

Examples from New Zealand case law are R. v. Taaka [1982] 2 NZLR 198 and R. v. Leilua [1986] NZ Recent Law 118. In R. v. Taaka the Court of Appeal held that psychiatric evidence was admissible to show the appellant suffered from a pathological condition making him an 'obsessively compulsive personality'. In R. v. Leilua the same court admitted evidence from a psychiatrist suggesting that the appellant suffered from chronic post-traumatic stress disorder, a condition recognised in medical science.

Those decisions serve to underline the nature of the evidence which would normally be anticipated when special characteristics relating to mental state or personality of a defendant are put forward as matters for the jury to consider.

In the present case, there was no medical or other evidence before the judge and jury, and none even from the appellant, to suggest that she suffered from a post-traumatic stress disorder, or 'battered women syndrome' or any other specific condition which could amount to a 'characteristic' as defined in R. v. McGregor [1962] NZLR 1069. True, there was much evidence that the appellant had suffered grievous ill-treatment; but nothing to suggest that the effect of it was to make her 'a different person from the ordinary run of [women]', or to show that she was 'marked off or distinguished from the ordinary [woman] of the community'.

Had the evidence which has now been put before this court been adduced before the trial judge, different considerations may have applied. As it is, we consider that there was no basis for the judge to refer to a characteristic consisting of an altered personality or mental state in this appellant. Nor do we consider that, on the evidence before them, the jury would have been justified in finding such a characteristic."

Miss Draycott submits that the Chief Justice was here indicating that the appellant's post-traumatic stress disorder, which she submitted was unconnected with the provocation offered, could, had there been evidence of it at the trial, have been taken into account as a characteristic and that the approach adopted by the English courts is, therefore, firmly upon the path blazed by the New Zealand decisions which culminated in the decision in R.v. McCarthy. When so submitting she points to what she suggests was an adopting reference made to R. v. Taaka and, in particular, to R. v. Leilua and to the observation that:

"Had the evidence which has now been put before this court been adduced before the trial judge, different considerations may have applied."

We consider this reads far more significance into the words used than was intended. We can see no justification for the suggestion that the law has deviated from the approach set out in R. v. Newell. We are satisfied that the provocation must be directed at the characteristic. It is true that the New Zealand courts have, interpreting their own Act, adopted a different approach. Mr. Grossman, for the Crown, suggested that this approach might, perhaps, be explained by the fact that in New Zealand there is no defence of diminished responsibility. However that may be, we are satisfied that there has been no such development in the law in England or in Hong Kong. We are fortified in this belief by an examination of the Homicide Ordinance. Section 3 provides for the defence of diminished responsibility which is concerned with abnormalities of the mind which substantially impair mental responsibility. That section provides a defence to persons suffering from an abnormality of the mind. There is no reasonable man test applicable thereto. Section 4, on the other hand, is not, as it stands, concerned with the mental abnormalities but, recognizing that a person may be driven to kill after having been provoked, applies the test of the reasonable man to the assessment of the loss of self-control. Great difficulty, it is true, can arise when applying that test, particularly when it is necessary to determine the effect of a mental condition. Such a condition is properly the central issue when considering diminished responsibility but is, we are satisfied, rightly, when the central issue is provocation, not to be considered unless it can be shown that the provocation was directed at the condition. We are satisfied that, as the law stands in England and in Hong Kong, the provocative words or acts can only be relied on if they are directed to the characteristic or, to put it another way, that provocation cannot be relied upon where, even though the accused may have a mental condition which lessens self-control, what was said or done was not directed thereto.

31. The application for leave is granted. The hearing of the application for leave is treated as the hearing of the appeal and the appeal is dismissed.

Representation:

Mr. C. Grossman, Q.C. & Ms. S.L. Opai (Crown Prosecutors) for the respondent.

Miss C. Draycott (D.L.A.) for D1.

Mr. E. Laskey (D.L.A.) for D2.

Mr. P. Callaghan (D.L.A.) for D3.