HKSAR v. Manjit Singh

CACC000282/2000

CACC 282/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 282 OF 2000

(ON APPEAL FROM HCCC NO. 357 OF 1999)

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Coram: Hon Mayo VP, Stock and Cheung, JJ.A. in Court

Date of Hearing: 13 September 2001

Date of Judgment: 9 October 2001

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1In this application for leave to appeal against conviction, the question is whether the trial judge was in error in withdrawing the issue of provocation from the jury.

The indictment

2The applicant was convicted on 29 June 2000 by the unanimous verdict of a jury, after a trial presided over by Beeson J. The indictment contained seven counts: the 1st Count alleged robbery of Ms TAM Yim-hung on 6 July 1999; the 2nd, the theft of a chose in action on 6 July; the 3rd and 4th, theft of choses in action on the following day, 7 July; and the 5th, theft of cash on the same day. Count 6 asserted that the applicant had forcibly detained Ms Tam against her will, and had done so with intent to procure a ransom. To all these counts, in respect of which there is before us no application, the applicant pleaded guilty.

3The application for leave to appeal against conviction is confined to Count 7, which alleged that on 7 July 1999, the applicant had murdered Miss Tam. The applicant pleaded not guilty to the charge of murder, but guilty to manslaughter. That plea was not accepted by the prosecution.

The undisputed evidence

4All the material events took place at 52 Wyndham Street in Central, Hong Kong. It was a building at which Ms Tam worked, and was also a building with which the applicant was familiar. His father was a watchman there, and it would appear that he, the applicant, was well acquainted with the building and the area.

5It was common ground that on the early afternoon of 6 July 1999, he stopped Ms Tam on the ground floor of the building. He said that he used a knife to force her to go upstairs to the seventh floor which he knew to be unoccupied, his intention being to rob her. As to what happened while she was there, the evidence came primarily from the applicant. He was the last person to see her alive. But his was not the only evidence. It was an admitted fact that Ms Tam died at about 5 p.m. on 7 July 1999, that is, about 27 hours after she was first abducted. There was evidence that, in the course of those 27 hours, a number of telephone calls were made by the applicant. One was to her work place, during which her colleagues were made aware that she was not coming back to work, the applicant telling them that she was in hospital. Six calls were made by him to her relatives, in which he made demands for money. The last three were taped by the police. It was made clear in the calls that the applicant was holding the victim against production of the ransom demanded, backed by a story, which he had concocted, that she was in trouble with gambling debts and that she was being held in Macau by the caller's "big brothers".

6At 2 a.m. on 8 July, the applicant was arrested at a sauna in Canal Road. He was taken to the police station, and then interviewed on two occasions. The police went to the seventh floor of the building in Wyndham Street and there, in a toilet, they found Ms Tam who was dead. We have, as did the jury, the pictures of what they found and we also have, as did the jury, photographs taken before the post mortem examination which demonstrate what the applicant had done, and how Ms Tam came by her death. The pictures show her feet bound tightly together with a towel. So, too, are her hands bound behind her back. Her head had been completely covered in such a way that it must have been impossible for her to breathe. There had, first, been tightly wrapped a towel around her head from about the hair line to below the nose; then a second towel tied tightly so as to cover the nose and the mouth to under the chin. Then a plastic shopping bag was tied on top of these two towels right over the head and face, so as to cover the mouth and nose. Then there was still another shopping bag placed over the head, and then a third, and then a fourth; and all of these bags were kept tightly in place by a cloth or towel tied round the neck, with a square knot at the back. The judge described the bags as follows:

"[The pathologist] examined the plastic bags and the coverings on the head and neck. He confirmed that it was completely covered. The outmost layer had a 5 centimetre slit on it, which was on the left back of the plastic bag. The second layer had no identifiable defect on it. the third layer had an irregular defect on the left front and two small roundish holes on the back. You will recall that the accused said that those holes were caused by the deceased herself. The fourth layer was another bag with an irregular defect on the centre front of the bag, and the innermost layer consisted of the two overlapping towels which tightly and completely covered the eyes, nose and mouth on the face and was knotted at the back. The outermost layer had also been knotted with a towel around the back, and the fourth layer, which was the one immediately over the towels on the face, had also been knotted." (Tr. p.14)

7The pathologist's conclusion was that the cause of death was asphyxia due to suffocation and to ligature strangulation. He said that "the manner in which the nose and mouth had been completely sealed up by the layers of covering and the degree of tightness of the ligatures around the neck were incompatible with long survival." There was no suggestion of manual strangulation, and the ligatures to which reference is made is a reference to toweling which was tied in order to keep secure the towels and plastic bags which had been placed over the victim's head by the applicant. Her tongue was caught between her teeth, indicative, according to the pathologist, of terminal convulsions, or terminal fit.

The prosecution's case

8The prosecution's case was that the applicant had caught the victim in order to rob her and to get money from her family, managed to obtain money by several withdrawals from her account with the use of her pin number, and deliberately killed her because he was aware that she might well identify him, not least because he admitted that she was someone he had seen before in or near the building which he frequented and at which she worked.

The applicant's evidence

9The applicant gave evidence at trial, and admitted that he caused Ms Tam's death, but his defence was that he did not intend either to kill her or to cause her grievous bodily harm. It was, he said, an accident. When he left her at 4 p.m. on 7 July, which was the last time he saw her, she was, he asserted, well enough, and had been talking to him.

10His story went along the following lines: He said that in 1998 he started gambling heavily in Macau and became indebted to loan sharks, who then began to threaten him, and that the threats were very serious. They included threats to kill his family, and to rape his wife. They had even held him hostage for some hours that year until his family had paid off a debt. By 6 July 1999, he owed the loan sharks something in the order of $800,000, and their threats were continuing, namely, to burn his house, to rape his wife, and to kill his family, which included his daughter. On 6 July they contacted him again, and they said that that day was the final day for payment, and that if he did not pay, they would carry out their threats. Eventually, they agreed that they would take $10,000 as a first monthly instalment. There was no bank or family member who could or would give him that money, so he decided to secure it by robbing someone. He planned the robbery, in that he equipped himself with a knife from his home as well as with three towels, which he then took to the seventh floor of the building in Wyndham Street, a floor which he knew to be unoccupied. Then, at about 2 p.m. on 6 July, he accosted Ms Tam and took her to the 7th floor. He tied her up; her hands and legs. She had a bag of groceries with her, but he took that away, and placed it in a cupboard. He also removed her shoes, and later disposed off them. He asked for her pin number, and then he took her credit cards from her. At about 6:30 p.m. he went out, but not before he had gagged her and placed towels over her head. He went out, made a call, he said, to the loan sharks, telling them that he had not been able to deposit money that day, and then went to withdraw money, using her card and pin number. He said that he took food back to the building where Ms Tam was. At 2 a.m. the following morning he went out, this time placing not only towels over her mouth but also plastic bags, though he said that holes were made to enable her to breathe. At 7 a.m. on the morning of 7 July, he went out again and telephoned the loan sharks, and this time they insisted not on $10,000, but on $45,000 in addition to the $10,000 earlier demanded.

11He was asked in examination in-chief:

"Q. What was your reaction when you had this news from the loan shark?

A. I was, like, shocked I was under a lot of stress. Well, I thought, I just made up the 10,000 so that I can save my family, but now they -they just insist for 45,000 more. I was thinking how can I put 45,000, how can I raise 45,000? Then I told them I've already robbed somebody and those 10,000 are from - from robbing, then they told me, 'Maybe you try and ask from the family.'" (Tr. p.144)

12So, at 7:30 a.m. he made the first call to the family. He thought, he said, that if he called the family and obtained the money, that would keep the loan sharks quiet. Later that morning, he called her place of employment. He then deposited some money into an account which, he said, belonged to one of the loan sharks. Later the same morning, he withdrew some more cash using her pin number.

13He said that he returned to Ms Tam, but in the course of the day came in and out several times. Each time he left her, he tied and gagged her afresh. Each time he did so, he checked to see that she was comfortable. He also took her food from time to time. When he left her for the last time, according to this testimony, he tied her again: "I tied her hands with towel, I tied her leg with towel, and put plastic bags on her face, also tied with towels, and then put her near the wall of the toilet, and then asking her is it okay for her. She also answer is it yes, she says it's okay, and then I left her." His story was that each time he went out he would replace plastic bags, or would place new bags, over her head. It never occurred to him that what he was doing with the towels or bags was dangerous. He never intended to kill her, or to cause her grievous bodily harm.

Cross-examination

14In cross-examination, he accepted that, at the time of the initial attack on Ms Tam, he was an officer in the Correctional Services Department, and that part of his training was in first aid, which included training in asphyxia. He accepted that there was a chance that Ms Tam recognized him. He accepted also that after he had tied her up and left the premises, he had played machine games at a video centre. He said that Ms Tam had offered him money, and had asked him to let her go. It appears clear from the cross-examination that he was saying that each time he went out, placing paper bags over her head, he was placing those bags over towels which were wrapped around her head (transcript, page 174). There then followed this exchange between counsel for the prosecution, and the applicant:

"Q. When you put the towels and the bags around her head, you knew what you were doing, didn't you?

A. Yes.

Q. Yes, you knew exactly what you were doing.

A. I knew I was putting towels on her face and plastic bags.

Q. Yes, and tying ligatures around her neck.

A. Yes.

Q. So you knew what you were doing, and obviously you knew what you were doing was wrong, didn't you?

A. Well, the first day I am being wrong to rob somebody. Everything I do is wrong.

Q. When you put the towels and the bags over her head, you knew what you were doing was wrong?

A. Yes.

Q. And at any point you could have stopped yourself from doing it?

A. At that time, I don't know because the first time when I applied those plastic bags on her face and also tied with towels, after I come back she was fine, and that's why I always applied those plastic bags and towels on her face.

Q. You'd agree with me there was nothing to prevent you from not doing it. In other words, you didn't have to do it, did you?

A. Yes.

Q. You decided, didn't you?

A. Yes.

Q. Your decision.

A. Yes." (Tr. pp.174-175)

15The story that the applicant was the subject of threats by loan sharks was not a story which he had given to the police when he was interviewed by them after his arrest. There was then no suggestion of acting under the stress of these threats. He said to the police that the reason why he put the bags over her head was because he was afraid that she might otherwise run away. His evidence before the jury as to this was much to the same effect. He was afraid that she would shout out.

The ground of application

16That is the evidential background against which the sole ground of this application for leave to appeal is to be examined. There was a ground of application which asserted that the judge erred in not allowing the issue of diminished responsibility to be determined by the jury, but that is not a ground pursued, so we are left with the question of provocation.

17The ground is framed as follows:

"The learned judge was in error in not allowing the issue of provocation to be determined by the jury - particularly so, as there was the clearest evidence that something had driven the Applicant, a person of hitherto good character, to behave in the way he did in this case."

18The argument is based upon the contention that there was evidence that the applicant's conduct was induced by desperation induced by unbearable pressure from loan sharks. The defence of provocation is not limited to circumstances in which the provoking conduct emanates from the deceased. The provocative conduct in this case emanated, it is said, from the loan sharks. It is argued that there was evidence that, as a result of this provocation, accruing over time and culminating in further provocation on 7 July, when the loan sharks said that they wanted even more money than the amount agreed on the previous day, the applicant was provoked into losing his self-control. We had understood until late in the argument that the provocation upon which the applicant relied was that allegedly constituted by the conduct of the loan sharks, but it has been suggested, further, that the provocation and loss of control stemmed also from the fact that the family of the deceased was not paying the money which the applicant had demanded.

The judge's decision

19Counsel for the applicant at trial, Mr Harris, in a speech he made to the jury before the applicant gave evidence, hinted at the defence of provocation. "What we're focussing on" he said "in the discussion [about] provocation are the events, the loan sharks, the threats, the things said not by Miss Tam but by the others that may have had a sufficient impact on his mind at the time to cause him to lose his self-control." We all know that counsel's speech is not evidence. Nonetheless, it is noteworthy that the point at which self-control was allegedly lost was not defined in the speech. Nor did Mr Harris suggest the manner of that loss of self-control in other words; how it was manifested; in what act. We note, too, that it was not there suggested that the provocation was constituted by any act of the victim's family.

20The issue of provocation was revived in a discussion between counsel and the judge before she delivered her summing-up. Mr Harris suggested that the situation was unusual, but put it that the provocation was constituted by the threats of the loan sharks (assuming it were accepted that there were such threats) which threats, he said, "must have had an impact on [the applicant's] rationality and are capable of causing this defendant to lose his self-control and are capable of causing a reasonable person ... to also sufficient enough self-control that is appropriate that murder be reduced to manslaughter." It may well be that the transcript does not exactly accord with Mr Harris' words but no doubt he said, or intended to say, that the acts of the loan sharks were such as to cause a reasonable person to act in the way the applicant acted - which, we suppose, is to suggest gagging the victim, tying towels around her face, and placing plastic bags over her head, in a sudden fit of passion. We note again that the provocation there mentioned was that allegedly offered by the loan sharks, and there is no mention of conduct by the family, although it is true to say that a while later in his submissions Mr Harris said:

"When one looks at the events as they unfold through the 6th and the 7th, doing the best we can not only from the defendant's version of events but from contemporaneous telephone calls and the rest of it, my Lady, it seems to me to be clear that a state of affairs is arising where there's an increasing pressure for money to be deposited so that the loan sharks can be paid off. That money appeared not to have been substantially forthcoming other than from the funds that the defendant was able to draw, and this is admitted, on the ATM card of the deceased, the smaller amounts." (Tr. p.204)

21The judge concluded that there was no evidence of loss of control to warrant leaving the matter to the jury. This is what she said:

"No. Your client has said very clearly on more than one occasion that he carefully at 4 o'clock on the afternoon, packed this woman in plastic bags, checked that she could breathe, was told by her that she could and then went off to the video game centre and later the sauna. There is no evidence of any loss of control possibly to indicate provocation. If he had said, 'I picked up this woman and grabbed her by the neck and shook her and tied her up roughly.' etc., etc., perhaps there might have been some justification for it. It would be complete nonsense to direct the jury on provocation on the basis that you just stated." (Tr. p.205)

22In her summing-up, the judge told the jury, in terms, that diminished responsibility and provocation which were mentioned when Mr Harris opened the defence case were no longer matters they needed to consider. That is the withdrawal of the issue, about which complaint is now made. The sole issue which the judge left to the jury to consider was whether the applicant intended to kill Ms Tam or to cause her grievous bodily harm.

The test

23Section 4 of the Homicide Ordinance, Cap 339 provides as follows:

"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."

24When is the issue to be left to a jury?

"... there can only be an issue of provocation to be considered by the jury if the judge considers that there is some evidence of a specific act or words of provocation resulting in a loss of self-control. It does not matter from what source that evidence emerges or whether it is relied on at trial by the defendant or not. If there is such evidence, the judge must leave the issue to the jury. If there is no such evidence, but merely the speculative possibility that there had been an act of provocation, it is wrong for the judge to direct the jury to consider provocation. In such a case there is simply no triable issue of provocation. I would hold that in such circumstances our law of provocation knows no principle that "the jury must not be deprived of their opportunity to return a perverse verdict" see the commentary by Sir John Smith on Stewart [1995] Crim.L.R. 67 but compare his later commentary on Acott [1996] Crim.L.R. 665."

per Lord Steyn in R v Acott [1997] 2 Cr.App.R. 94,102.

25Similarly, in R v Cambridge [1994] 1 WLR 971, 975D-F Lord Taylor CJ said:

"But what sort of evidence gives rise to the duty? Clearly, it is not for the judge to conjure up a speculative possibility of a defence which is not relied on and is unrealistic: see Fazal Mohammed v The State [1990] 2 AC 320 at p.332. There must be some evidence, but of what strength? In Bullard v R [1957] AC 635, the phrase used was: 'any evidence ... fit to be left to a jury.' It is true that in R v Camplin [1978] AC 705 at p.716D, Lord Diplock used the phrase 'however slight', but he used it to describe the measure of the provocative acts or words, not the strength of the evidence that such acts or words in fact occurred and caused the defendant to lose his self-control. Likewise in R v Rossiter (1992) 95 Cr App R 326 at p.332 when Russell LJ referred to 'material capable of amounting to provocation, however tenuous it may be,' the word 'tenuous' described the provocative acts and words not the evidence of their existence."

26As was emphasized in HKSAR v Coady (No. 2) [2000] 3 HKC 570, two questions should be asked when the issue of evidential foundation for a defence of provocation is addressed. The first is whether there was any evidence of conduct of a provoking nature, that is, conduct capable of provoking the offender to lose his self-control. The second question is whether there was evidence on which the jury could reasonably have concluded that the conduct in fact caused the applicant to lose his self-control. That second question itself incorporates, we suggest, two questions, namely, whether there was evidence of a loss of control and, if so, whether there is a casual link between the loss of self-control, and the provoking conduct.

The source of provocation

27We shall in this case leave aside the question whether the alleged conduct of the loan sharks could be said to constitute provoking conduct and, in particular, whether section 4 of the Homicide Ordinance permits such a defence when the conduct relied upon as constituting the provocation is not only not the conduct of the deceased, but not even the conduct of a person in any way connected with the deceased and is not conduct to which the victim was party, or of which she was even aware. We do not analyse and determine the question because it is, in this case, unnecessary to do so, since resolution of this application is readily found elsewhere. However, lest it be thought that we are attracted by the argument, we will say this much, that the decision in R v Davies (1975) 60 Cr App R 253, upon which the applicant relies, is not the support the applicant seeks, for it was there held that the conduct of the lover of the attacked spouse could, in that case, in conjunction with the conduct of the spouse, suffice as a source of provocation within the section. The paramour was there a person connected with the spouse; indeed offering provocation with her. There is, furthermore, Canadian authority, R v Manchuk [1937] 4 DLR 737, which clearly suggests that the defence does not embrace the killing of a person "who as the offender well knows and fully realizes, was not in any way concerned in the provocation": per Sir Lyman Duff CJC, at p738. See also R v Jackson 75 Can C.C. 306.

A sudden loss of control

28The aspect of this case which renders this application readily susceptible of resolution is the question of an evidential basis for the suggestion that there was a loss of control of the kind contemplated by section 4 of the Ordinance. In our judgment, there existed no such evidential foundation.

29Mr Griffiths SC, for the applicant, argued that loss of self-control can last over a period of time; that it is not necessary, in order to avail oneself of the defence of provocation, to show a sudden loss of control. It is necessary for the applicant to hang his hat on that peg, a contention of a gradual and extended loss of control, because, on any view of the evidence, the victim was alive in captivity for an extended period, during which the applicant's conduct is strongly suggestive of deliberation. We do not know how accurate, if at all, was the applicant's evidence that Ms Tam's head was wrapped about with towels and bags, periodically, over a span of some 27 hours. That was his own evidence. It may just be, though there was no evidence directly in support of the suggestion, that the towel wrapping took place only towards the end of the whole episode. Whatever the truth, she was his captive for a long time, and the indicia are all highly suggestive of deliberation: deliberation in the robbery itself and its planning; deliberation in the binding and gagging of the victim; deliberation in the withdrawal of monies; deliberation in the making of telephone calls to the family and in the calls themselves; and further episodes of apparently panic-free activity in the playing of video games with the withdrawn money.

30Mr Griffiths' argument is that pressures on the applicant were such that there was a period of over 24 hours or so during which the applicant was, or might have been, not in control, not master of his mind and that, if that be so, it matters not that there is no sign of a sudden loss of control.

31We are satisfied, however, that the scenario thus presented does not only not accord with the evidence but that the proposition of law put to us is, with respect, inaccurate, and loses sight of the nature of the defence. The loss of control which is contemplated by the section is a sudden loss of control which renders the accused so subject to passion as to make him for the moment not master of his mind. Once that is understood, the weakness of this application is made manifest. That formula, the sudden loss of control rendering the offender so subject to passion as for the moment to make him not master of his mind, is a well-worn formula which we have taken from R v Duffy [1949] 1 All ER 932. That encapsulation of the essence of the defence was not affected by the Homicide Act, section 3(the same as section 4 of the Ordinance), although the section did affect the common law in other regards. The requirement of a sudden and temporary loss of self-control, and the reference to passion, and to a momentary loss of mastery of the mind, is repeated in Whitfield 63 Cr App R 39, 42, a case decided in 1976. As recently as R v Smith (Morgan) [2000] 3 WLR 654, the allowance for human frailty, which is the rationale for the defence of provocation, was referred to as an:

"allowance for a case where passion has temporarily deprived a person of his or her reasoning facilities. ...One essential element for the availability of a plea of provocation has always been that the act be done in the heat of passion fired by the provocation before reason has returned."

(per Lord Clyde at p.681)

32The spirit in which the defence is intended to be understood is, we respectfully suggest, quintessentially reflected in the following passage from R v Ahluwalia [1992] 4 All ER 889, 895-896:

"In R v Thornton [1992] 1 All ER 306 a similar argument to that advanced by Mr Robertson was considered and rejected. Beldam LJ giving the judgment of the court said (at 313-314):

'The words "sudden and temporary loss of self-control" have ever since been regarded as appropriate to convey to a jury the legal concept of provocation first expressed by Tindal CJ in R v Hayward (1833) 6 C&P 157 at 159, 172 ER 1188 at 1189 in mitigation of the rigour of the law for acts committed - "while smarting under a provocation so recent and so strong, that the prisoner might not be considered at the moment the master of his own understanding ..." ...The changes in the law of provocation made by s3 of the Homicide Act 1957 and the reasons for them are well known. It has never, so far as we are aware, been suggested that the distinction drawn by Devlin J between a person who has time to think and reflect and regain self-control and a sudden temporary loss of self-control is no longer of significance ... The epithet "sudden and temporary" is one a jury are well able to understand and to recognise as expressing precisely the distinction drawn by Devlin J.'

The phrase 'sudden and temporary loss of self-control' encapsulates an essential ingredient of the defence of provocation in a clear and readily understandable phrase. It serves to underline that the defence is concerned with the actions of an individual who is not, at the moment when he or she acts violently, master of his or her own mind. Mr Robertson suggested that the phrase might lead the jury to think provocation could not arise for consideration unless the defendant's act followed immediately upon the acts or words which constituted the alleged provocation. He submits a direction to this effect would have been inappropriate and inconsistent with a number of authorities (see, for example, R v Hall (1928) 21 Cr App R 48, Lee Chun-Chuen v R [1963] 1 All ER 73, [1963] AC 220 and Parker v R [1964] 2 All ER 641, [1964] AC 1369).

Nevertheless, it is open to the judge, when deciding whether there is any evidence of provocation to be left to the jury and open to the jury when considering such evidence, to take account of the interval between the provocative conduct and the reaction of the defendant to it. Time for reflection may show that after the provocative conduct made its impact on the mind of the defendant, he or she kept or regained self-control. The passage of time following the provocation may also show that the subsequent attack was planned or based on motives, such as revenge or punishment, inconsistent with the loss of self-control and therefore with the defence of provocation. In some cases, such an interval may wholly undermine the defence of provocation; that, however, depends entirely on the facts of the individual case and is not a principle of law."

Analysis

33What, one asks in the present case, was the moment of violence, causing death, which is said to have been a sudden and temporary loss of control? It is true that the applicant's evidence was that he was under much stress, particularly on the morning of 7 July, when the amount of the demand was increased. But that was not when there was any act of violence visited upon this lady causing her death. The applicant then telephoned the victim's family for money, and there is no suggestion that they then gave him no hope of the ransom. Mr Griffiths suggested that the realization at about 4 p.m. on 7 July that the ransom was not forthcoming might have been the crucial provocative trigger. That was certainly not the applicant's evidence, for he said that when he left the applicant at that time she was "okay"; and that indeed he had taken trouble to ensure that she was "okay". Nor does this line of argument sit with the fact that 4 p.m. was not, on the evidence, the first time the applicant had offered this lady violence, or tied her up, or gagged her. Nor does it sit with his evidence that when he telephoned the family after he left her, he told them to put the money in the following day. There was no question, on the evidence, of some final denial of ransom.

34Whilst the applicant said that whilst the victim was his prisoner, he was under pressure and his mind was blank, his evidence was that he put the bags and towels over her head, not because he was angry with her, or with anyone else for that matter, or because he was frustrated, but because he did not want her to shout or, if she did shout, to be heard. He said that he was stressed, and that in that condition of stress, he was not as careful, as might otherwise have been the case, as to how he placed the bags. Yet he was in control, for as we shall shortly see, he said so in terms. He even checked her condition regularly to ensure that she was "okay".

35It was not suggested, nor is it now suggested, that once the loan sharks, if they existed at all, told him that the amount required was increased, he thereupon lost his mind and in a rage, based either on what he had just been told, or on what he had just been told taken as the last straw in a culmination of provocative acts, suddenly grabbed hold of Ms Tam and strangled her. Instead, he telephoned the family, and made a ransom demand. No violence was used on this lady which, by its nature, suggests a loss of control. Such violence as was used was of a calculated and intricate and deliberate nature: the binding of hands and feet, the placing of layers of cloth, and layers of bags, and the tying of knots to secure such layer. There was no evidence, or even suggestion, of manual strangulation. The knife, which was allegedly in the applicant's possession, was never used. The towels which were used had been brought from his home before the robbery. These were not instruments of suffocation suddenly snapped up from somewhere handy. After the applicant first stole Ms Tam's money, he went out and played video games, this man who is said to have lost his control. In the course of the time she was in his custody, he made several outings to ATM machines to steal money. After the last time he left her, he went to play video games again, and then spent money at a sauna. During the prolonged period of Ms Tam's captivity, the applicant made a number of telephone calls. We have the transcripts of those calls made to the family of the deceased before she died. They reveal a kidnapper who was quick and alive to questions asked. The conversations were detailed, and the answers apparently well thought through, part of a plan executed over some hours. There was no suggestion made that his voice showed high emotion, or stress.

36It is then argued that the evidence sufficient to warrant leaving the matter to the jury was to be found in the evidence of a psychiatrist called on the applicant's behalf at trial. He is Dr Chen, who saw the applicant in April 2000, some ten months after the killing, who read some of the case papers, and who was in court watching the applicant give evidence. We note that he was reminded in his examination-in-chief that one of the reasons he was in court was to assist on the question of diminished responsibility. In that context, he spoke of compulsive gambling as an abnormality of mind, and when asked whether that abnormality of mind was a disease, he suggested that the duress from loan sharks was real. He also said that the fact that the applicant had carried out the robbery at a building with which he was connected suggested an act "quite irrational in the sense that if you commit robbery you would go somewhere that people can't recognise you." Mr Griffiths then relies on the following exchange in cross-examination as constituting the evidence of provocation:

"Q. So, it's the pathological gambling which leads to his involvement with the loan sharks?

A. Mm.

Q. And it's the pressure from the loan sharks which causes him, you say, to act in the way he did killing this woman?

A. Robbing this woman, yes.

Q. Well, he killed her, that's what we're here for.

A. Yes.

Q. He killed her. Did you not know that?

A. Yes.

Q. He killed her. Now, you say it's the pressure from the loan sharks which caused him to do that.

A. Yes.

Q. Pressure from the loan sharks caused him to act in the way he did in relation to this woman.

A. Yes." (Tr. pp.193-194)

37But that is not the end of the evidence of that witness. He reverted to the theme, evident in the earlier part of the exchange to which we have just referred, that it was pressure from loan sharks that caused the applicant to rob Miss Tam, which of course was not the issue:

"A. As a clinician I am concerned with the chain of events. The pathological gambling led him to have debts with the loan sharks, and the threat from the loan shark led him to go and get money by any means, and that led to the robbery. That's what I see." (Tr. p.194)

38Counsel for the prosecution then directed the doctor to the true issue:

"Q. ... You've talked about a chain in which you've talked about pathological gambling, loan shark and then the robbery, as you call it. I prefer talking about the murder. On the day that he killed this woman, gambling had nothing to do with it.

A. You're correct.

Q. Yes. It was all to do with loan sharks.

A. Yes.

Q. Yes. Thank you, Doctor. And you would agree with me, Doctor, that at the time he killed this woman he knew what he was doing.

A. Yes.

Q. You would agree with me that at the time he killed this woman he knew what he was doing was wrong.

A. That's correct.

Q. And you would agree with me that at the time he killed this woman, he had the ability to stop himself from those actions that he took which led to her death.

A. Yes.

Q. In other words, he had the ability to exercise his own will power to control his physical acts.

A. Yes.

Q. You agree with that?

A. Yes, I agree." (Tr. p.195)

39What this doctor was talking about was the pressure to which someone can be subjected when threatened by loan sharks. He did not address or analyse, still less did he assert, loss of control. He did not suggest, or point to, any indicia of a sudden loss of control. To the contrary, his evidence was that there was control at all times.

Conclusion

40That was the evidence. There was no basis at all from which a proper inference could possibly have been drawn that there had been a sudden loss of self-control rendering the applicant so subject to passion as to make him for the moment not master of his mind. So, when the trial judge said that it would be nonsense to direct the jury on provocation on the basis advanced, she was putting bluntly her conclusion, with which we fully agree, that there was not a scintilla of evidence to justify leaving the defence of provocation for the jury's consideration.

41It has been suggested that, in arriving at her decision, the judge addressed the wrong question, in that she asked only where there was evidence emanating from the applicant himself that he had lost control, and did not seek to ascertain from what other source such evidence might have emerged. It is true that the judge's comments emphasised the applicant's own evidence, an emphasis that was in the circumstances of this trial, not surprising. However, the ruling was delivered in the course of an exchange between counsel and the judge, rather than in the nature of a formally phrased ruling; and we note that the judge said that "there was no evidence of any loss of control possibly to indicate provocation", suggesting that she thought there was no evidence from any source. That said, even if the judge did concentrate entirely on the testimony of the applicant, the ground of appeal is that "the judge was in error in not allowing the issue of provocation to be determined by the jury." That requires us to consider whether there was any evidence which required her to do so. We have concluded that there was not. So, to have left that issue to the jury would have been to confuse them with an assertion for which there was no evidential basis. Accordingly, the judge's conclusion was correct.

42There is, for the reasons we have provided, no merit in this application, and it is therefore dismissed.

Representation:

Mr John Griffiths, SC leading Mr Graham Harris instructed by Messrs Jal N Kabhari & Co. for the Applicant

Mr P S Chapman, SADPP and Mr Vincent Wong, SGC of the Department of Justice for the Respondent