Wong Cheung-hing v. The Queen

CACC000391/1978

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Coram: Huggins and Pickering, JJ.A. and Trainor, J.

Date of Judgment: 9 January 1979

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JUDGMENT

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1. Although the Appellant in his evidence initially denied having had anything to do with his father's death, he later admitted that he had struck and killed him. The case had been put forward by the Crown as one of cold-blooded murder, albeit a crime which was motivated by revenge for the father's failure to carry out his paternal duties towards the Appellant and for the father's neglect of the Appellant's step-mother. Even when the Appellant had admitted the killing, he gave two different accounts of the events leading up to it. The first version was that the Appellant woke up and went out to urinate; that he then had a chance encounter with his father (who lived nearby); that he asked his father for a loan of $200, which was refused; that the refusal was accompanied by the derogatory words "You are such a grown person. You are damn useless"; that a quarrel ensued; that the Appellant picked up a hammer from a pile of garbage; and that he struck his father with the hammer in the course of a struggle. The second version was that the Appellant was so incensed by the treatment he had received at the hands of his family (and in particular at the hands of his father) that he decided to kill him, lay in wait for him and killed him when he was returning home.

2. The main defence put before the jury was that of diminished responsibility, a defence only available when the circumstances would otherwise require a verdict of Guilty of murder. That defence was rejected by the jury and nothing more needs to be said about it. What is argued by Mr. Yu on behalf of the Appellant is that the learned judge failed to give a proper direction as to provocation. It has never been disputed by the Crown that the father's conduct had been such as might cause a deep and justifiable sense of grievance. However, the contention of the prosecution was that, unless what I have called "the first version" of the crime might be true, there was no evidence of anything which could in law amount to provocation: if the killing was pursuant to a planned assault with intent to kill, with no intervening events which might destroy the nexus between the killing and the original plan and intent, the only verdict open was that of Guilty of murder. Mr. Yu does not, as we understand him, disagree with that: his contention is that it was open to the jury to find that the Appellant might have been provoked in the sense in which that word is used in relation to murder and that it was therefore essential for the judge to give a proper direction as to provocation. He goes on to submit that the judge's direction was defective in that it was not in accordance with the principles since laid down in Reg. v Camplin 1978 2 W.L.R. 679, a report which was not available to the judge.

3. We have no doubt that this was a case where a proper direction as to provocation was called for. It may well be that in all the circumstances it was unlikely that the jury would find provocation to be a likely cause of the killing, but the possibility was there and it would have been wrong to withdraw the issue of provocation from them.

4. Mr. Reid for the Crown concedes that the learned judge's direction was not such as would satisfy the requirements of Reg. v Camplin as set out by Lord Diplock at 1978 2 W.L.R. 686 E:

"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."

What the trial judge said in the case at bar was:

"Now, the verdict of manslaughter would be open if you considered that it was reasonably open upon the evidence that the accused, as a result of provocation, might have lost his self-control and attacked his father, causing his death, and if you further considered it reasonably possible that if the accused was a person of normal self-control he might have lost control of himself and behaved as he did. So first of all, of course, you would have to look at the evidence to see whether there was this possibility of provocation. If you felt there was this possibility of provocation and because of it the accused might have lost his self-control and attacked his father causing his death, and if you then further considered it reasonably possible that if he were a person of normal control he might have lost control of himself and behaved as he did, then you would find that there was provocation. Another way of looking at the second part of it - that is whether or not a person of normal self-control would lose his self-control - is to ask this question: Might a person in all of the circumstances of the accused, with normal self-control, have lost his self-control and behaved as the accused did? Now, if you consider that this is open upon the evidence, then even though the accused killed his father he would be guilty only of manslaughter. If on the other hand, you consider that it has been proved that there was no provocation or that if the accused had been a person of normal self-control he would not have acted as he did, even though the provocation suggested was offered to him, if you come to either of those conclusions then a verdict of manslaughter is not open."

He also said:

"If you dismiss the first version, if you dismiss it as being untrue, another attempt to exculpate himself, then of course you won't be further concerned with the question of provocation."

5. The first point to notice is that the learned judge did not expressly indicate which acts of the Deceased could properly constitute provocation, but it is implicit in the second passage cited that he did not consider the conduct of the Deceased prior to the night of the crime to be capable of constituting provocation without the contemporaneous events. The distinction was appreciated by the jury, because when they asked the judge for further directions their first question appears to have been "whether the accused through asking the victim for $200 and received insult in return should be regarded as provocation" (sic). The first part of the judge's reply was:

"Well, as I have told you when I summed up, it is for the Crown to prove beyond reasonable doubt that there was no provocation. So if it is reasonably open on the evidence that the accused as a result of some provocation, of some insult offered to him, might have lost his self-control and attacked the deceased causing death, if that is open upon the evidence, then you must act upon it."

That could have been more happily expressed. It was for the judge to tell the jury whether the conduct predicated was capable in law of being regarded as provocation, as in all the circumstances we think it was. It was therefore "open upon the evidence" for the jury to find that provocation had not been negatived. Whether they would so find was a matter for them. The sentence "then you must act upon it" was ambiguous, but they would presumably have taken it to mean that if they found that provocation was not negatived they must return a verdict of Not guilty of murder but Guilty of manslaughter. The judge later said:

"If provocation is open upon the evidence then you must give effect to that by returning a verdict of manslaughter. If you feel it is open upon the evidence that the death of the deceased occurred because there might have been provocation then you must give effect to it and return a verdict of manslaughter whether or not there may also have been a plan to kill."

That, again, could have been more happily expressed, for the first sentence suggested that if the judge left provocation to the jury the jury must return "a verdict of manslaughter". The second sentence showed that what was being said was to be read strictly in the context of the effect of a plan to kill: the judge was clearly referring to the possibility of a finding that the death of the Deceased had occurred because there had been provocation, in which event the effect of the plan would have to be regarded as spent.

6. Mr. Yu was, we think, prepared to accept that the principles of law were correctly stated by the judge but his submission was that the judge did not set out the characteristics of the Appellant which might affect the gravity of the provocation to the reasonable man referred to in the statute, that is to say his blood relationship to the Deceased and the hurt which he had suffered at his father's hands. It is true that these "characteristics" were not disputed, but the question is whether the jury could have been left in any doubt that "a person in all the circumstances of the accused" meant a person who was in the same blood relationship and who had been treated similarly by his father. The vital matter is not what the learned judge meant to convey by those words but what the jurors would understand him to mean. It would have been better had the judge detailed "the circumstances of the accused" but we do not think that the jury could have been in any real doubt that the judge was referring to what Lord Morris of Borth-y-Gest described as "the attributes of the accused" and "all the events which surrounded the accused" or that those attributes and events were the blood relationship and the hurt which he had suffered at his father's hands.

7. For these reasons we think the learned judge's charge to the jury was adequate and the application for leave to appeal is dismissed.

9th January 1979.