HKSAR v. Mok Tsan Ping and Others

CACC000424/1999

CACC 424/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 424 OF 1999

(ON APPEAL FROM HCCC 427 OF 1998)

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Coram: Hon Stuart-Moore Ag CJHC, Leong and Wong JJA

Date of Hearing: 1 November 2000

Date of Judgment: 20 November 2000

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

Introduction

1. On 3 August 1999, the Applicants (D1, D2 and D3 respectively) appeared before V. Bokhary J on a single charge of murder. Following a sixteen-day trial, the jury convicted D1 and D3 of murder and convicted D2 of the alternative of manslaughter. All the Applicants sought leave to appeal against conviction.

2. During the hearing of the application, on 1 November 2000, Mr Saw SC, on behalf of the Respondent, very properly conceded that the judge had failed to direct the jury on a crucial aspect affecting the cases of D1 and D2. This amounted to a material error in the summing up. Accordingly, we treated the hearing of the application as the appeal itself and we allowed the appeals of D1 and D2. Their convictions, for murder and manslaughter respectively, were quashed. Having heard the submissions of counsel as to whether there should be a re-trial, we ordered a re-trial for D1 and D2 on a fresh indictment for manslaughter.

3. In the case of D3, we reserved judgment.

4. We now set out our reasons for quashing the convictions of D1 and D2 and give judgment in the case of D3.

Prosecution's case

5. It is necessary firstly to look with care at the factual background to the case presented by the prosecution against all the Applicants in order to follow the directions which the judge particularly needed to give to the jury when summing up on joint enterprise and the possible verdicts which were open to the jury on the charge of murder.

6. The general circumstances in which Li Man-tik (the deceased), aged 19, was killed outside 23, Soy Street, in Mongkok, on 12 August 1998 can best be described, on the prosecution's version, as a fairly typical, triad-style, revenge attack. It was alleged that this was committed by the three Applicants acting together.

7. The prosecution was able to set the scene for the bad blood which existed on that day between the deceased's group and the Applicants' group by calling Chan Sik-hung (Chan). He had an appalling criminal record with convictions for a wide variety of offences. Chan had been involved in a petty argument with D1 in the Kam Po Hot Pot Restaurant (the Restaurant) which ended with D1 saying something to the effect that Chan had an hour in which to "blow the whistle". A little later, Chan found himself being followed by D1 and two other men. He ran away and summoned help from the deceased. The deceased and other men duly arrived at some time after 6.00 p.m. and, together with Chan, returned to the Restaurant where they found D1. They berated him and pushed him to ground. The deceased and his group then rushed out of the Restaurant. This was the last time Chan saw the deceased.

8. The events inside the Restaurant were also observed by the proprietor, To Yiu-wing (To) who described a group of four men going to D1's table where there was an altercation. D3 was sitting at another table. D3 and the others at his table joined in the altercation at which time To noticed someone wielding a knife which, in turn, led to a general rush into the street.

9. Another civilian witness who saw the events in the Restaurant, Lee Tak-wai identified D2 and D3 as people who worked for D1. They were in the Restaurant when the deceased and his group came in and assaulted D1. He saw D1 pick up a stool and strike back. When everyone including D1 ran out of the Restaurant, D1 was still holding the stool.

10. Eight witnesses were able to describe the short chase from the Restaurant along Tung Choi Street towards the junction with Soy Street. This involved three men running after the deceased. All of these eye-witnesses, as it happened, were police officers. Six of them were on duty and two, a married couple, were off-duty. The effect of their evidence was that all the Applicants were in pursuit of the deceased. D1 was carrying a stool, D2 was unarmed and D3 wielded a large knife. However, the precise sequence of the pursuers and the events after they had caught up with the deceased were matters which were in issue at trial. It is therefore necessary to look at these aspects of the evidence in some detail.

11. PC 33133 Pong Chun-chung (PC Pong) described D2 catching hold of the deceased on one side while D1 grabbed him on the other side. D3 then stabbed the deceased twice in the back.

12. PC 34125 Cheung Ting-fan placed the Applicants in a different order, saying that D3, who was carrying the knife, was followed by D1 and D2. He remembered the stabbing as having come first, before D1 struck the deceased with the stool and D2 struck him with his fists.

13. Apart from minor variations, PC 52502 Wong Chi-cheung, who was patrolling with PC Cheung, described the same sequence of events as his colleague.

14. A further group of three officers were on patrol together consisting of Sgt. Kwan, PC Chan and PC Law. All of them said that D3 was the closest to the deceased amongst the group of three men pursuing him. When the deceased turned into Soy Street, they briefly lost sight of events but moments later they were able to see the deceased on the ground and D3 still holding the knife.

15. DPC 46663 Law Kwok-wah and his wife, WPC 55283 Liu Po-yee, were off duty and had been out shopping. At about 6.40 p.m. DPC Law saw D1 closest to the deceased, followed by D2 and, lastly, the knifeman, D3. WPC Liu could not put the three men chasing the deceased in any precise order. Both these witnesses spoke of seeing the deceased struggling in Soy Street with D1 and D2. DPC Law said they were hitting the deceased and, almost at the same time, D3 stabbed the deceased twice in the back. WPC Liu saw D1 and D2 grab the deceased and D3 stabbing him in the back.

16. The Applicants were arrested at gunpoint by PC Pong. D1 said nothing at all. D2 replied that he did not know what happened. D3 said: "Ah Sir, I got hold of a knife to chop others because I was chopped just now."

17. Later, when the deceased's body was examined at the post mortem, two stab wounds to the back were discovered. The fatal stab wound had penetrated the body to a depth of about 21 cms, damaging the heart and left lung. The other wound was 6 cms deep but was not life-threatening.

18. The Applicants were medically examined. D1 had two areas of tenderness. D2 had a small abrasion on his face. D3 had a wound to his left hand which the doctor stated could have been caused by grabbing a knife held by someone else.

Defence case

19. D1 and D2 did not give evidence. D3 gave an account from the witness box to the effect that, having been assaulted in the Restaurant, he followed D1 outside and found that he was being pursued by three or four persons, one of whom was armed with a knife. He was caught and surrounded. He was kicked and punched but he managed to get hold of the knife. He tried to fend off his pursuers and felt, as he did so, that he had chopped someone. As he ran away, he tripped over someone and then dropped the knife when he found a police officer pointing a gun at him.

Issues at trial

20. The trial judge, having very properly invited counsel in advance of the summing up to address her as to the defences which should be left to the jury, decided to leave as alternatives to murder, manslaughter by reason of provocation in D1 and D3's cases and manslaughter by reason of unlawful act for all the Applicants in the event that the jury were unable to find the intent required for murder to have been proved. In due course, the judge also summed up the issue of self-defence in the case of D3, having regard to his evidence that he had been assaulted by others and had defended himself with the knife he had seized from one of them. In this respect, the judge directed the jury that if they were unsure about the guilt of D3, they should "not be sure of the other two accused's guilt either".

D1's grounds of appeal

21. Mr McCoy, SC, on behalf of D1, raised nine grounds of appeal although, in the light of the concessions made on the Respondent's behalf, we have only had to consider two of these. Although Mr McCoy's Perfected Grounds of Appeal failed to focus precisely upon the point he was making, they were widely enough drawn for him to argue in two of his grounds that the judge had failed to leave D1's case sufficiently or adequately to the jury. More specifically, he submitted that the summing up had failed to distinguish, on the totality of the evidence, the role played by D1. This, he submitted, was because the judge had presented a single factual approach in which joint enterprise was repeatedly put forward as the only basis on which the jury should proceed to evaluate D1's case. Whilst accepting that this was certainly one view which could be taken of the evidence, Mr McCoy described the judge's approach as an over-simplification which had the effect of eliminating a possible defence which was open to D1. In particular, he submitted that whilst the judge had, in broad terms, properly directed the jury on joint enterprise, at no stage had she specifically directed the jury that they should be sure, before convicting of murder, that D1 was aware of the knife in D3's hand. This omission, he said, was aggravated by the judge effectively removing this part of the defence by stating in terms that D3 was "openly carrying a knife" which carried with it the suggestion that D1 must have known about it.

22. Having earlier in her summing up defined murder and unlawful act manslaughter, it suffices in this context to set out how the judge left the issue of murder against all the Applicants. At page 34G in the summing up, the judge had this to say:

"Members of the jury, it is for you as the sole judges of fact, and having seen and heard all the witnesses and listened to the speeches of all counsel, to assess the accuracy or otherwise of each and every piece of evidence which you have received. You will consider the case for and against each accused separately.

You are entitled to feel sure - whether you do is a matter for you - that all three accused, with the 3rd accused openly carrying a knife, pursued the deceased along Tung Choi Street and right into Soy Street. You are entitled to feel sure - it is a matter for you - that when the deceased was caught, the 3rd accused stabbed him to death.

Depending on how you assess the evidence, you are entitled to feel sure - it is a matter for you - that after the deceased had been stabbed twice by the 3rd accused, the 1st accused hit the deceased with a stool and the 2nd accused hit the deceased with his hand. Or you are entitled to feel sure - it is a matter for you - that the 1st and 2nd accused caught the deceased and detained him while the 3rd accused came up and stabbed him to death.

Whether you take either or neither of those views is a matter for you. On either view, you are entitled to feel sure - it is a matter for you - that all three accused were acting in pursuance to a joint enterprise to kill the deceased or at least to cause him really serious injury, and that the deceased died as a result of what they did in pursuance to that joint enterprise. That would mean that all three of them are guilty of murder as charged.

You have heard what all four counsel have said in their final speeches. I have not repeated what they said in those speeches. You no doubt have a clear recollection of what they said, and counsel are entitled to have you consider their speeches in the precise words and tone in which they made them.

As I have already told you, the accused does not have to prove anything. The prosecution must, on the basis of the evidence which it has placed before you in the court, prove beyond reasonable doubt the accused's guilt. That is precisely what the prosecution contends, while the defence disputes it, has been done here.

The decision is yours to make. Approach your task on the basis of the directions which I have given you and using your common sense."

23. Very considerable criticism was made by Mr McCoy, and later by Mr Plowman, SC, on behalf of D3, of the repeated use of the expression "you are entitled to feel sure" in a context where judges have traditionally directed the jury that it is for them to decide whether they are sure of a piece of evidence before coming to a particular conclusion adverse to a defendant in respect of it. We have some sympathy for this criticism. The formula adopted by the judge might, in some circumstances, have given rise to a possible view, despite the phrase "it is a matter for you" which was repeated five times, that the prosecution was entitled to a conviction on one basis or another which had been put forward by their witnesses. However, the judge had also made plain to the jury that whether or not they took "either or neither view" that this was a joint enterprise killing, based on the sequence of events described by the prosecution's witnesses, was for them to decide.

24. Leaving this criticism aside, which we do not consider to have been of fundamental importance, nowhere in the summing up was the jury ever directed that to convict of murder, they must be sure that D1 knew that D3 was carrying a knife before D1 launched his own assault on the deceased. This omission, as Mr Saw conceded, was fatal to the conviction of D1. In fact, it has to be said that the judge's only reference to D1's defence to the charge, besides the passing mention regarding counsel's speeches contained in the citation taken from the summing up (above), was a very similar reference at page 3R where she said:

".... counsel for the accused have addressed you on the weight and effect of the evidence. Do give careful consideration to their speeches. It was very recently that you heard their speeches. You will remember them clearly. So I need not repeat them. What has been urged upon you in counsel's speeches as to the facts is ultimately for you to accept or reject as you see fit. Speeches are not evidence. They consist of submissions and comments which, after consideration, you may or may not find helpful. The facts are for you alone as the sole judges of fact."

25. The importance of the judge's omission to focus the jury's attention as to whether D1 had knowledge that D3 was carrying a knife, based on an inference which could be drawn from an abundance of evidence to that effect, was illustrated in R v Uddin (1998) 2 All ER 744. In that case, the appellant was in a group of six who were attacking one man. In the course of the attack, one of the appellant's co-accused (Tahid) used a flick-knife to inflict a fatal wound on the victim of the attack. The appellant and Tahid were convicted of murder while the three other co-accused were acquitted of murder and convicted of manslaughter. The basis of the appellant's successful ground of appeal against conviction was that, when dealing with joint enterprise, the judge failed to direct the jury that in order to convict the defendant of murder they had to be sure that, as a secondary party to the killing, he had foreseen as a possibility the use of a knife. There had been, apart from the testimony of one witness who heard a cry of "stab him", no evidence that any of the attackers knew that Tahid had a knife. Beldam LJ, giving the judgment of the court, distilled the principles to be applied to such a case, in the light of the decisions in R v Powell, R v English (1997) 4 All ER 545, (1997) 3 WLR 959, and went on to say at page 753G:

"Whilst the jury were, as we have said, carefully directed to consider whether the actions of any of the accused went so outside the common purpose that they were not foreseen by the others, the jury's attention was not specifically focused on the use of the knife by Abdul Tahid and whether on the evidence they were sure that the others were aware that he might use it. As we have said, there was evidence from which the jury could conclude that those of the accused who took part after the shout of 'Stab him' must have been aware that one of them had a knife and might use it with intent to do serious harm. Lord Hutton stressed the lethal nature of a knife as a weapon; it was for the jury to say whether its use in this attack was so different from the concerted actions of hitting the deceased with clubs and kicking him with the shod foot that Tahid's actions went beyond the common purpose.

It was also for the jury to say in each case whether those taking part were aware, whether from the shout or otherwise, that one of their members might use a knife." (Emphasis added).

26. Returning to the present case, there was a large volume of evidence to indicate that D3, as the judge observed, was "openly" carrying the large knife used to stab the deceased. However, whether or not D1 (and D2 to whom we will turn later) knew that D3 was doing so was a crucial matter for the jury's consideration. We have no means of knowing what the jury made of the various descriptions of the order in which the Applicants ran after the deceased. It may be that the most likely sequence was that which showed D1 to have been behind D3. D1 had, after all, been knocked down in the Restaurant. If he was behind D3, it was more likely than not that he would have seen the knife being wielded. On the other hand, if he was in front, it could be said to have been less likely. These were all issues for the jury. Unfortunately, despite the most careful general directions as to joint enterprise, this crucial aspect was never explained to the jury with a direction, in terms, that to convict of murder in the particular circumstances of the case they had to be sure that D1 knew that D3 was carrying a knife and might use it to do serious harm. In the absence of such a direction, Mr Saw felt compelled to concede that D1's murder conviction could not stand. We were in full agreement with him and for this reason we quashed D1's conviction.

D2's ground of appeal

27. The same omission from the summing up, Mr Saw again had to concede, had an impact on D2's position despite the fact that the jury only convicted in his case of manslaughter.

28. Digressing for a moment, we should say, in this regard, that neither counsel nor the members of this court could discern any logical distinction in the evidence against D1 and D2 which might have enabled the jury to return a different verdict in respect of each of them. The only obvious difference of any kind between them lay in the fact that D2 was unarmed (and was able to adduce evidence of his previous good character) whereas D1 was armed with a stool.

29. The plain fact remains, however, that D2 may have been deprived of the opportunity to be acquitted at the hands of the jury by the absence of a direction that to be guilty at all, even to the limited extent of manslaughter, he had to have been aware that D3 was carrying a knife and might use it to do some harm albeit not serious harm. Only then could D2's actions properly be said on these facts to have been part of a concerted joint attack on the deceased where it must have been within his contemplation that D3 might use the knife. If, on the other hand, the prosecution was unable to prove this to the jury's satisfaction, D2 was entitled to be acquitted. For this reason, we quashed D2's conviction for manslaughter.

Re-trial for D1 and D2

30. We were satisfied that a re-trial should be ordered but, as Mr Saw was not able to identify any reason for the seemingly extraordinary decision of the jury to acquit D2 of murder when, for all practical purposes, on the same evidence they convicted D1, and in order to achieve consistency between the two Applicants in the trial which will follow, we ordered a re-trial for both on a fresh indictment for manslaughter.

D3's grounds of appeal

31. D3's position in the trial was plainly very different to the other Applicants. In his evidence, he made no clear admission that he had stabbed the deceased although he did not deny it. Eight police eye-witnesses had seen him holding a knife. Five of the officers had seen D3 stab the deceased twice with it. The jury were in no doubt that D3 had brought about the deceased's death by unlawful means. No criticism is made of the judge's directions as to self-defence and it is not surprising that the jury rejected the story told by D3 in the face of overwhelming evidence to the contrary.

32. D3's grounds of appeal are solely related to the directions which the judge gave on provocation.

33. A direction on the alternative verdict of manslaughter by reason of provocation had been necessary because of what had occurred inside the restaurant when D1 was set on by the deceased's group. D3 was a friend of D1 and had been speaking to D1 across their adjacent tables before the deceased and others arrived with the plain intention of attacking D1. There was some evidence (from To) that D3 was assaulted when he went to D1's assistance. When giving evidence on his own behalf, D3 said that he had been pushed to the ground where he was punched and kicked after he had tried to mediate with the deceased's group. He stated that one of the deceased's group carried an umbrella which he later saw was being used to conceal a knife.

34. Mr Saw submitted that this was the flimsiest basis for a direction on provocation, but he accepted that there was a low evidential threshold which would give rise to the need for a direction on provocation. We have in any event proceeded on the basis that D3 was entitled to the benefit of such a direction having regard to section 4 of the Homicide Ordinance, Cap. 339, which provides:

"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."

35. Mr Plowman advanced two grounds of appeal in his Re-amended Perfected Grounds. In the first of these, he submitted that when the jury asked questions on two occasions during their lengthy deliberations relating to provocation, the judge replied in terms which either gave rise to a material irregularity or which contained errors of law or both. In his second ground, Mr Plowman submitted that:

"Generally, the approach of the learned trial Judge carried with it the real danger of overbearing the jury's deliberation on provocation and/or amounting to an effective withdrawal of the same from their consideration."

36. In order to examine these criticisms of the judge's handling of the case, it is necessary to look at the questions which were asked and the replies she gave.

37. The first question asked by the jury, relevant to this ground of appeal, read:

"In respect of provocation, we want some more guidelines on the definition of a 'reasonable man'. That is: when we refer to a 'reasonable man', should we consider the characteristics and background similar to the accused or just an ordinary man in the public. We ask this because, for example, a man similar to the accused may be more aggressive or pugnacious than the ordinary man."

38. The judge's response was to repeat much of what she had earlier told the jury. She directed the jury in these terms:

"Members of the jury, in answer to your .... question, I begin by repeating something which I have already told you. A reasonable man, or a reasonable person, members of the jury, is an ordinary person - I repeat - 'an ordinary person' of the sex and age of the accused, and who shared such other individual characteristics of the accused as you, the jury, might consider would affect the gravity of the provocation to him.

Next, I will read out to you certain parts of a judgment which represents the law today. The first part which I will read from this judgment is as follows:

'The "reasonable man" .. 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...'

The second part which I will read out from this judgment is this:

'The reasonable man 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 would also react to the provocation as the accused did.'

Continuing, the reasonable man is a person having the power of self-control of an ordinary person of the sex and age of the accused and who shared such other individual characteristics of the accused as you, the jury, might consider would affect the gravity of the provocation to him.

Remember two things, members of the jury. First, subject to that qualification as to similar sex and age and shared characteristics, the reasonable man is someone with the self-control of an ordinary person, not a particularly aggressive or pugnacious person.

Secondly, when I referred to characteristics affecting the gravity of the provocation, I mean for example things such as the fact that the accused was a dwarf, or of a particular colour or ethnic origin, or impotent, or suffering from an abscess on the cheek when struck, or undergoing menstruation or menopause.

Such characteristics do not include things like being particularly aggressive or pugnacious. We are talking about a reasonable man sharing the accused's characteristics of the kind which I have just illustrated by example.

We are not talking about a particularly aggressive or pugnacious man sharing those characteristics. A man cannot escape a murder conviction on the basis that he is particularly aggressive or particularly pugnacious. The partial defence of provocation is not there for a man to escape a murder conviction just because he is more aggressive or pugnacious than the ordinary man ...."

39. The judge, in this passage, was taking the text from DPP v Camplin (1978) AC 705 HL which is repeated in Archbold 2000 at para. 19-60.

40. Mr Plowman submitted that when the judge, following her citation from Camplin, paraphrased Lord Diplock's speech, she erroneously replaced on a number of occasions the word "exceptionally" with "particularly" to qualify "(excitable), aggressive or pugnacious". He contended that the effect of so doing was to suggest to the jury that a man who was more aggressive or pugnacious than others could not be a "reasonable man". Having regard to the jury's question, which was precisely on this point, Mr Plowman submitted that the direction amounted to a withdrawal of the issue of provocation. Mr Plowman gave various illustrations taken from the evidence in the trial which he said were capable of showing that D3 was a more aggressive person than normal people of his sex and age. These examples included D3's reaction to the attack made on D1 by the deceased's group and the manner in which he may have given evidence before the jury.

41. Mr Saw's response to this submission was that within the factual matrix of this case, whilst it may have been preferable for the judge to have maintained consistency by adhering to the word "exceptionally", there was no risk of a reduction in the scope of the jury's determination on the question of reasonableness. In our opinion, this must be right. As Mr Saw observed, there had been no evidence about D3's personality traits or any other special characteristics which were referable to such an issue which might justify the criticism made of the judge's directions in this regard. Another way of expressing this might be to say that, by looking at all the evidence as a whole, there was nothing "exceptionally" or even "particularly" aggressive or pugnacious in D3's conduct which called for a specific direction concerning his characteristics or personality. If D3 had been provoked by being beaten up, he would have been equally provoked whether he was particularly or exceptionally aggressive. Indeed, it was D3 who gave evidence that he had tried to mediate, thereby acting as a peacemaker between the deceased's group and D1 before he was attacked himself.

42. Looking at the question which the judge was asked, it must have been apparent from the phrase: "should we consider the characteristics and background similar to the accused ...." that there was at least a possibility that the jury may to some degree have been embarking on a course involving unjustified speculation. The jury had inevitably been made aware from the evidence that not only was there a triad background to the case but that some of the events were closely connected to prostitution and to "pimping" in particular. With this in mind, the judge's response to the question was, in our view, entirely appropriate. The law relating to provocation does not contemplate, as Mr Saw aptly put it, that those who are involved in triad attacks, based perhaps on some perceived loss of face, are in any different position than the reasonable man. If the judge's lengthy response to the jury's question was intended to focus their attention towards the only matters which were relevant to their consideration, she was right to have done so.

43. However, Mr Plowman took further exception in this context to the judge's choice of words when directing the jury that:

"The partial defence of provocation is not there for a man to escape a murder conviction just because he is more aggressive or pugnacious than the ordinary man."

44. We can understand that the use of the word "escape", which Mr Plowman criticised, might in certain contexts be seen to diminish a defence by creating the impression that a defendant was slipping out of his predicament through an undeserved loophole. In the present context, we do not think that the judge was conveying such a message although the more usual formula of telling a jury that a defence is not there to enable the defendant to be acquitted (rather than to escape), simply because of some particular feature in the case, might have been preferable.

45. We do not need to consider in any detail the criticism also made by Mr Plowman that the answer which the judge provided to the jury's question was unbalanced and unfair to the defence. The answer was clear and to the point.

46. There came a time, during the second day of their deliberations, when the jury asked another question relating to provocation. Its terms are set out in the transcript at page 50 and were these:

"As directed (we believe), it is the prosecution's responsibility to prove non-existence of provocation. If the prosecution has or has not proved such non-existence or if the prosecution has given little reference to provocation, can the jurors consider provocation in the light of the presented facts and evidence?"

47. Counsel were asked for their views and they voiced a chorus of approval for replying simply in the affirmative. The judge wisely adjourned to consider the jury's question and to decide whether a simple "yes" answer was sufficient. In the event, the judge concluded that this was not an adequate reply. Indeed, the judge obviously recognised that to have acceded to the course proposed by counsel would have been most unhelpful. Our attention was drawn to the fact that counsel for the prosecution, Mr Lloyd, had not troubled to address the jury about provocation. In failing to do so, he had run the risk of leaving the jury thinking that provocation in the case of at least one defendant may not have been in dispute. It was, after all, a defence which the prosecution had to negative. The judge, having in all probability noticed that this was what was troubling the jury, repeated many of her earlier directions, after she had read the question back to the jury to remind them of its terms. On this occasion she said:

"The answer to your question is this. The prosecution's responsibility is to negative provocation. But that does not mean that you should speculate about any provocative acts or conduct of which there has been no evidence. In seeking to carry out its responsibility of negativing provocation in this case, what the prosecution is doing is essentially this. The prosecution points to the evidence of three men pursuing one man, of the pursued man being caught, and of his being stabbed twice in the back, with one of the stab wounds going in so deep as to almost come out at the chest after penetrating the lung and the heart.

Next the prosecution relies on the law that provocation does not arise as a matter of law unless a reasonable man would have been provoked to do as the accused did. And the prosecution says, in effect, that it is plain common sense that the conduct here is not that of a reasonable person even if provoked in the way suggested by the evidence of this case. I have already told you, and now I repeat this. The reasonable man is a person having the power of self-control of an ordinary person of the sex and age of the accused.

All right, I shall repeat again what I've already told you yesterday. You remember that the reasonable man is a person having the power of self-control of an ordinary person of the sex and age of the accused, and who shared such other individual characteristics of the accused as you, the jury, might consider would affect the gravity of the provocation to him. Remember two things. First, subject to that qualification as to similar sex and age and shared characteristics, the reasonable man is someone with the self-control of an ordinary person, not a particularly aggressive or pugnacious person.

Secondly, when I refer to characteristics affecting the gravity of the provocation, I mean for example things like the fact that the accused was a dwarf, or of a particular colour of an ethnic origin, or impotent, or suffering from an abscess on the cheek when struck, or undergoing menstruation or menopause. Such characteristics do not include things like being particularly aggressive or pugnacious. We are talking about a reasonable man sharing the accused's characteristics of the kind which I have just illustrated by example. We are not talking about a particularly aggressive or pugnacious man sharing those characteristics. A man cannot escape a murder conviction on the basis that he is particularly aggressive or particularly pugnacious.

The partial defence of provocation is not there for a man to escape a murder conviction just because he is more aggressive or more pugnacious than the ordinary man. It is open to the prosecution to carry out its responsibility to negative provocation by persuading you that this pursuit and stabbing is not the conduct of a reasonable man. You are entitled to feel so persuaded. Whether you do or not is a matter for you. Indeed, you may think that the world would be a far more violent and dangerous place if it could be said that this pursuit and stabbing was the conduct of a reasonable person. So members of the jury, that answers your question. Please now retire."

48. We do not agree with Mr Plowman's submission that the judge should have confined the answer she gave to a simple "yes". We also reject the submission that a further direction on provocation was not required when it is perfectly apparent the jury were still having considerable trouble in following what is, on any view, a most difficult aspect of the law.

49. Mr Plowman went on to make a specific complaint about the last passage taken from the judge's reply to the effect that the world would be a far more violent and dangerous place if this kind of behaviour could be regarded as the conduct of a reasonable man. It is plain, from the context in which the remark was made, that the judge was saying that if the prosecution had disproved provocation then, in such circumstances, this episode was inexcusable.

50. Other criticisms of the phraseology chosen by the judge, with which we have dealt in relation to the first question, do not need to be repeated.

51. There is, however, in relation to the replies given to the jury in respect of both questions a far more important issue to be considered. Mr Plowman argued that the judge's directions were wrong in law because these were inconsistent with what was said, albeit long after the present summing up, in the majority judgment of the House of Lords in R v Smith (Morgan) 2000 3 WLR 654. In particular, it was submitted, the judge had erred by "failing to direct the jury that all of the particular characteristics of the defendant were to be taken into account in deciding both whether he was in fact provoked and whether the objective element of provocation was satisfied."

52. In Smith (Morgan) (above), the defendant at trial had relied on a defence of provocation and had adduced evidence of a mental condition which had the effect of reducing his power of self-control to below that of an ordinary person. The prosecution unsuccessfully appealed in the House of Lords against the decision of the Court of Appeal to substitute a verdict of manslaughter following the appellant's conviction for murder. It suffices for present purposes to read from the headnote at page 654F where their Lordships (by a majority of three to two) are shown as having held that:

"In determining under section 3 of the Act of 1957 (the equivalent of section 4 of the Homicide Ordinance, Cap. 339, in Hong Kong) whether (the) provocation was enough to make a reasonable man do what the defendant did, the jury was required to ask whether the degree of self-control exercised by the defendant was that which reasonable people with his characteristics would have exercised; that all the particular characteristics of the defendant were to be taken into account in deciding both whether he was in fact provoked and whether the objective element of provocation was satisfied; that the question for the jury was whether the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter; that the jury had been entitled to take into account the effect of the defendant's depression in relation to the question whether he had measured up to the standard reasonably required of him; and that, accordingly, the judge had erred in failing to leave that question to them."

53. Arising from this decision, Mr Plowman particularly relied on a passage taken from the speech of Lord Hoffman at 671H which was as follows:

"The jury is entitled to act upon its own opinion of whether the objective element of provocation has been satisfied and the judge is not entitled to tell them that for this purpose the law requires them to exclude from consideration any of the circumstances or characteristics of the accused."

54. In the present case, it is apparent that the jury was well aware of the full background to the case and of D3's involvement in events leading up to the killing. In our opinion, it cannot be said that D3's association with triad activities or his possible criminal disposition would qualify him as someone having particular or unusual characteristics justifying a direction that these features about D3 could affect the gravity of the provocation or, leaving aside considerations of D3's age and sex to which the jury was specifically referred, that these considerations had relevance to D3's powers of self-control. There were, on the evidence adduced before the jury, no unusual or particular characteristics for the jury to have considered.

55. In this last regard, this court in HKSAR v Kong Kwong-san CACC 135/1998 (unreported) declined to follow the English Court of Appeal's decision in R v Smith (Morgan) and preferred the reasoning in Luc Thiet Thuan v The Queen [1997] AC 131. Leave to appeal on this point was refused by the Appeal Committee of the Court of Final Appeal (Kong Kwong-san v HKSAR FAMC No. 4 of 1999).

56. Nothing raised on D3's behalf has caused us to view the verdict in his case as unsafe or unsatisfactory. The evidence against D3 was overwhelming. The summing up in respect of D3 cannot be critised in our judgment on any matter of substance. However, having regard to the last of the matters raised by Mr Plowman, we think it is proper to give leave but, treating the hearing as the appeal, we dismiss the appeal of D3 for the reasons we have given.

Representation:

Mr D.G. Saw, SC, DDPP, of the Department of Justice, for the Respondent.

Mr Gerard McCoy, SC and Mr Sher Hon Piu, instructed by Messrs Chan & Partners, for D1/Applicant.

Mr William Stirling, instructed by the Department of Legal Aid, for D2/Applicant.

Mr Gary Plowman, SC, instructed by Messrs Eddie P.L. Law & Co., for D3/Applicant.