The Queen v. Wong Hing-ping

CACC000483/1986

BETWEEN

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Coram: Yang, J.A., Penlington & Macdougall, JJ.

Date of hearing: 5th December, 1986.

Date of delivery of judgment: 5th December, 1986.

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JUDGMENT

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Yang, J.A.:

1. The evidence was that this Applicant killed the deceased out of jealousy because he suspected that his wife had had an affair with him. They had worked together for a short time.

2. The defence made much of the Applicant's background, namely his relationship with his mother who appeared to be a domineering figure, and did not get on well with his wife, his jealousy of his wife's association with the deceased, his living condition, and so on.

3. On the fateful day of the 9th May this year, enraged by that feeling of jealousy, the Applicant went to the bean curd stall operated by the deceased armed with a triangular file. He had a quarrel with him and then stabbed the deceased some 25 times with the file, thereby causing his death.

4. At the trial the issue of provocation was run as the sole  issue for the defence and the judge devoted much time in explaining the meaning of provocation to the jury in the summing up. Unfortunately, in so doing, he failed to direct the jury as to the meaning of the reasonable man as referred to in DPP v. Camplin [1978] 67 Cr. App. R. 14. At the conclusion of his summing up, however, when his attention was drawn to this matter by Counsel for the Crown he rectified the omission.

5. Counsel for the Applicant has advanced three grounds of appeal. They are, first, that the judge failed to explain clearly and concisely the meaning of provocation; secondly, that he failed to explain to the jury adequately that when considering the test of a reasonable man they should take into account the character or characteristics of the Applicant, and thirdly, that he failed to explain to the jury adequately or at all that provocation was a defence in murder even if the Applicant intended to cause the death of the deceased.

6. Reading the summing up together with the judge's direction to the jury after his attention had been drawn to the omission earlier mentioned, we are of the view that his direction on the meaning of provocation was adequate. As to the question of the particular characteristics of the accused, we bear in mind the passage in Archbold, paragraph 20-33, particularly the last paragraph at p.1619. In our judgment the judge dealt with this point adequately and nothing that was said by Counsel this morning suggests that his summing up was deficient in any way in this regard.

7. As to the third ground of appeal we are unable to find anything in the summing up that could be construed as suggesting to the jury that if the Applicant had formed the intention to kill they could not find him guilty of manslaughter on the basis of provocation. Indeed, in view of the nature and multiplicity of injuries inflicted and the nature of the weapon used, we cannot imagine that the jury could have concluded otherwise than that the Applicant had intended to kill the deceased.

8. Moreover, when counsel for the defence later specifically emphasized to the judge in the presence of the jury that even if the Applicant had had an intention to kill it was open to them to find him guilty of manslaughter due to provocation, the judge agreed that this was correct.

9. Although we accept that it is perhaps preferable for a judge to reinforce his agreement with what counsel has stated as being the law with a direction to the jury that goes beyond mere acceptance of that statement, we are completely satisfied that in all the circumstances of this case the jury would have been left in no doubt as to the correct position in law.

10. The Applicant added two further grounds of appeal himself. We do not think that there is any merit in either of these two additional grounds.

11. The application is therefore dismissed.

Representation:

P. Dinan (C.W. Leung & Co.) for Applicant

I.G. Cross for Crown/Respondent