HKSAR v. Chung Kei Tung

CACC 130/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO.130 OF 2003

(ON APPEAL FROM HCCC 89 of 2002)

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BETWEEN

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Date of Hearing:   31 August 2004

Date of Judgment:  28 October 2004

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.The applicant was convicted on 18 March 2003 of murder, following a trial before Tong J and a jury.  He now seeks leave to appeal against conviction.

2.The facts were relatively straightforward.  It was not disputed by the applicant when he gave evidence that he had killed the deceased.  The main issues at trial related to whether he intended to kill the deceased or to cause him really serious bodily harm and, if so, whether he had acted under provocation.  Self-defence was also raised.  Provocation is the only relevant issue to this application.

3.The evidence established that at about 1 am on 29 September 2001, the applicant and the deceased fought on the lower deck of a barge moored at Sha Chau off the coast of Lantau Island.  The deceased was employed there as a mechanic.

4.Mr Leung was in charge of the barge and knew the applicant as a former colleague.  On that particular night, the applicant came to the barge in his sampan at about 11 pm, having purchased fuel there about two hours earlier.  He asked Mr Leung for permission to remain on board until the early hours of the morning as it was too late for him to return to the Mainland if he was to avoid trouble with public security officers.  He was given permission to remain on board.  The applicant chatted until about 1 am while Mr Leung was fishing.  He was then told that he could take a rest at the stern or on the bench next to the dining table.  The applicant asked for a pillow but he was told that no pillow was available.

5.Eventually, the applicant went into the cabin where the deceased was sleeping.  His evidence was that he had found it difficult to sleep on the bench and, remembering that Mr Leung had told him there was an extra bed in the deceased’s room, he asked the deceased to allow him to sleep in the room.  The deceased refused this request and would also not allow him to take some bedding from the room.  The applicant said that the deceased became very angry and scolded the applicant in foul language, complaining at being disturbed.  The applicant said that the deceased pushed him out of the room.  He said that he had never been scolded in such a rude manner before and this, in turn, had made him feel very angry with the deceased.

6.The applicant’s immediate thought was to fetch a knife from his sampan to scare the deceased.  In fact, when he went back to arm himself, he picked up two knives which were in the same place in the sampan.  The applicant then returned to where the deceased was sleeping and threatened him with one of the knives, having “flicked” at the deceased’s pillow.  When the deceased saw the knife, he punched the applicant.  It was then that a struggle broke out.  The applicant said that the deceased tried to snatch the knife away from him and he felt that he had unintentionally stabbed the deceased once.  He was terrified as the deceased had become “ferocious”.  At one stage he threw the knife out of the room, hoping the deceased would not be able to get it.  The applicant also described how, when he lost his balance, the deceased came on top of him and started hitting his head and back.  As he thought he was going to be beaten to death, he took out the other knife he was carrying and stabbed again with an upwards motion as he was being held down by the deceased.  He said he could not control himself and did not know which parts he stabbed.

7.Mr Leung did not see what had caused the fight and was only alerted to it by dogs barking nearby.  What he saw apparently happened towards the end because the applicant and the deceased were, by this time, both covered in blood.

8.Mr Leung described how he saw the applicant with a knife in his left hand and using his right hand to hold the deceased’s shoulder.  He shouted to them to stop but the applicant told him that it was nothing to do with him and to go away.  Mr Leung then went to the room of another crew member, Ah Yau, to seek his assistance but was unable to wake him.  When he returned to the scene of the fight, the applicant was still struggling with the deceased.  Mr Leung saw the applicant in a standing position while the deceased was bending a little with his arms around the applicant’s waist.  The deceased appeared to be unable to put up further resistance.  He described seeing the applicant stab the deceased on the neck near to his left ear.  He again asked the applicant to stop and, when there was no response, he returned to Ah Yau’s room for help.  By the time he came back, the applicant had fled and the deceased was motionless with blood streaming from his neck.

9.The deceased died from blood loss which directly resulted from the neck wound.  Seven other stab wounds were found, three of which penetrated deeply into his body.

10.Dr Lai, a chemist and specialist in the analysis of blood patterns at crime scenes, whose opinion was that the stab wound to the neck was inflicted when the deceased was close to the floor.  This evidence, and the account given by Mr Leung, enabled the prosecution to allege that the deceased had been putting up very little, if any, resistance when he was killed by the applicant.

The application

11.The sole ground of appeal which Mr Poll advanced on the applicant’s behalf alleged that the verdict was unsafe or unsatisfactory because the judge:

“…. erred in that he refused to allow the defence to call as a witness Dr Anita C Leung, a psychologist, who had examined the applicant and prepared a report on him.  This refusal had the effect of withholding from the jury information relating to characteristics of the applicant and thereby prevented the jury from taking into account such characteristics of the applicant as they thought might affect the fact and gravity of the provocation on him.”

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

“4.    Provocation

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.”

13.The first of the two elements of provocation as a partial defence to murder, usually referred to as the “subjective”  question, is whether, as a matter of fact, the defendant was provoked by things said or done, or both, to lose his self-control.  The second element, the “objective” question, is whether, in the opinion of the jury, the defendant should reasonably have controlled himself.

14.The only evidence which gave rise to the issue of provocation in the matter presently before us came from the applicant himself.  At trial, defence counsel sought to put before the jury the evidence of Dr Leung, a registered clinical psychologist, to provide evidence “to support the two tests under provocation”.

15.The evidence of Dr Leung which the defence had hoped to put before the jury was contained in her report dated 18 July 2002.  The preamble to this report reads:

“Referral

Mr. Chung was charged with one count of murder on 29 September 2001.  He was referred for a psychological report to understand why he had lost his self-control so easily.”

16.In the body of the report, Dr Leung set out her assessment of the applicant before expressing her opinion that the applicant was suffering from a condition known as “Avoidant Personality Disorder” and “Alcoholic Dependence”.  Her findings were largely based upon the “Millon Clinical Multiaxial Inventory” (MCMI–III) which she described as:

“…. a standardized, self-report questionnaire that assesses a wide range of information related to a person’s personality, emotional adjustment, and attitude toward taking tests.  It is comprised of 175 items that are scored to produce 28 scales, which are closely aligned to both Millon’s personality theory and the DSM-IV (the Diagnostic & Statistical Manual of Mental Disorders – Fourth Edition).”

17.Dr Leung’s report continued in these terms:

“…. Test results on MCMI-III suggest that Mr. Chung’s test profile is a valid one.  He is open in disclosing himself.  His response style reflects that he is crying out for help.

Mr. Chung’s test responses fit in with that of the Avoidant Personality Disorder and Alcoholic Dependence.  He sees himself as socially inadequate, inferior, a failure, and good at nothing.  He tends to be indecisive and restive.  He is sensitive to ridicule, criticism, and rejection.  He tends to maintain distance in interpersonal relationships to avoid being shamed and humiliated.  He has few mechanisms to channel needs, blind impulses, resolve conflicts, and deflect external stressors.  He experiences constant undercurrent of tension, sadness and anger.  He resorts to fantasies to achieve need gratification, confidence building, and conflict resolution.  He also resorts to drinking to escape from unease.  He is cognitively distracted by potential environmental threat and intrusive thoughts that might interfere with thought continuity, social communication and accurate appraisal.

Besides, he manifests traits of Dependent, Negativistic, Depressive, Antisocial, and Borderline Personality Disorders, as well as features of Bipolar, Dysthymia and Anxiety Clinical Syndromes.  He allows others to make decisions for him, and change his ideas.  Yet, he resists fulfilling expectations of others.  His moods fluctuate at times with situations.  He tends to retreat under stress to earlier developmental levels of anxiety tolerance, impulse control, and social adaptation.  He discharges anger and other troublesome emotions precipitously and callously on the spur of the moment.  He feels anxious about his future, and gloomy about positive changes and improvement.”

Objective test in provocation

18.Mr Poll, in the course of his submissions, rightly conceded that, as the law in Hong Kong presently stands, Dr Leung’s evidence was inadmissible for the purposes of answering the objective question which the jury had to determine, namely, whether the provocation was enough to make a reasonable man do as he did.  His concession was made on the basis that not only the trial judge but also this court were bound by the decisions in HKSAR v Kong Kwong-san, CACC 135/1998 (unreported), Kong Kwong-san v HKSAR, FAMC No.4/1999 (unreported), and in HKSAR v Wong Hing-piu [2003] 1 HKC 373.  Underlying all of these decisions was the judgment of the Privy Council (Lord Steyn dissenting) in Luc Thiet Thuan v The Queen [1997] AC 131.

19.In Luc Thiet Thuan v The Queen, the meaning of the “reasonable man” in provocation is summarised in the headnote at (p. 132) as follows:

“…. the reasonable man referred to by section 3 of the Act of 1957 and section 4 of the Ordinance was a person who shared such of the individual characteristics of the defendant as the jury might consider would affect the gravity of the provocation to him but had the power of self-control to be expected of an ordinary man or woman, or young person, as appropriate; that there was no basis upon which mental infirmity on the part of the defendant which had the effect of reducing his powers of self-control below that to be expected of an ordinary person could, as such, be attributed to the ordinary person for the purposes of the objective test in provocation …”  (Emphasis added)

20.The Privy Council adopted the approach, at pp. 140-141, recommended by Professor Ashworth that:

“The proper distinction …. is that individual peculiarities which bear on the gravity of the provocation should be taken into account, whereas individual peculiarities bearing on the accused’s level of self-control should not.”

21.The decision in Luc Thiet Thuan was considered and applied in HKSAR v Kong Kwong-san (above).  This decision was then the subject of an application for leave to appeal before the Appeal Committee.  Bokhary PJ, giving judgment and refusing leave, said:

“In our view, Luc Thiet Thuan is wholly convincing, and there is no reasonable prospect of the Court of Final Appeal disagreeing with the Privy Council on the point in question.  It should be mentioned for the sake of completeness that in following Luc Thiet Thuan the Court of Appeal was not proceeding merely on the basis that it was bound by that decision.  It said in terms that it also preferred the thinking in that case to that in Smith.”

22.In the course of this judgment, Bokhary PJ had referred to R v Smith [1998] 4 All ER 387 which at that stage had reached the level of the English Court of Appeal.  This later became the subject of appeal to the House of Lords (R v Smith (Morgan) [2001] 1 AC 146) which affirmed the decision of the Court of Appeal (Lord Hobhouse and Lord Millet dissenting).  The rationale in Luc Thiet Thuan was not followed.  All of these stages of development were further considered in HKSAR v Wong Hing-piu [2003] 1 HKC 373 where Lord Goff’s reasoning in Luc Thiet Thuan and Bokhary PJ’s endorsement thereof were affirmed.

23.This court is bound by its own decisions and the judgment of the Court of Final Appeal and we do not propose to repeat the arguments which are fully set out in HKSAR v Wong Hing-piu (above).  We would, however, respectfully venture to suggest that the law of homicide has been compromised by the House of Lords’ decision in R v Smith (Morgan).  The definition of provocation in section 4 of the Homicide Ordinance (section 3 of the Homicide Act 1957 in England and Wales) has, it seems to us, been stretched beyond that which the legislature had in mind.  In particular, we do not feel able to accept that the legislature could have intended the “reasonable man” to be someone who possesses psychiatric or psychological characteristics which are generally the attributes of a person who is not reasonable.  In our opinion, these considerations can only, in the context of manslaughter, relate to the defence of diminished responsibility save to the extent to which they may impact upon the subjective element in provocation.

24.In the present case, Dr Leung’s description of the applicant as one who fitted the profile of a person with conditions known as “Avoidant Personality Disorder” and “Alcoholic Dependence” led her to express the opinion, in effect, that this would have had a tendency to reduce the applicant’s ability to control his temper.  This, however, is a subjective consideration to which we shall shortly turn.  The jury, when determining the objective question, whether the provocation was enough to make a reasonable man do as he did, were permitted to take into account everything said and done in the course of the events which had led to the killing in reaching their opinion prior to verdict.  As Lord Goff in Luc Thiet Thuan (above) said (at p. 144) in relation to the individual mental infirmities of a defendant:

“…. there is no basis upon which mental infirmity on the part of the defendant which has the effect of reducing his powers of self-control below that to be expected of an ordinary person can, as such, be attributed to the ordinary person for the purposes of the objectivetest in provocation.”

Later (at p. 146), as to the relevance of mental infirmity, Lord Goff continued:

“It is of course consistent with Lord Diplock’s analysis in Reg. v. Camplin [1978] A.C. 705, and indeed with the decision of the House of Lords in Reg. v. Morhall [1996] 1 A.C. 90, that mental infirmity of the defendant, if itself the subject of taunts by the deceased, may be taken into account as going to the gravity of the provocation as applied to the defendant.  Such a conclusion was also consistent with the opinion expressed obiter by North J. in Reg. v. McGregor [1962] N.Z.L.R. 1069.  But this is a far cry from the defendant’s submission that the mental infirmity of a defendant impairing his power of self-control should as such be attributed to the reasonable man for the purposes of the objective test.”  (Emphasis added)

25.In this case, there was no evidence that the applicant’s mental infirmity, such as it may have been, was itself the subject of taunts by the deceased.

Subjective test in provocation

26.This leads us to a consideration of whether, for the purposes of the subjective test in provocation, the evidence of Dr Leung was both relevant and admissible.  Its relevance is not disputed.  Dr Leung’s report provided a basis for saying that the applicant’s condition was such that he “discharges anger and other troublesome emotions precipitously and callously on the spur of the moment”.  His responses fitted those associated with “Avoidant Personality Disorder” and he manifested traits of “Borderline Personality Disorders, Dysthymia and Anxiety Clinical Syndromes” amongst others.

27.The issue, as Mr Saw, SC, for the respondent, rightly accepted, was whether or not the opinion of the psychologist would have been of any assistance to the jury in determining whether the applicant had lost his self-control.  Mr Saw argued that the preamble to Dr Leung’s report provided a major stumbling-block to the admissibility of the report as a whole.  He submitted that this disclosed an assumption on Dr Leung’s part that the applicant had not only lost his self-control but also that he had done so “easily”.  In such circumstances, Mr Saw suggested that Dr Leung’s assumption, coupled with her conclusions drawn from the tests she had administered, answered the precise issues to be decided by the jury and would, effectively, have usurped their function.  Mr Saw also pointed to certain material in Dr Leung’s report which was plainly inadmissible.

28.Dealing, firstly, with the alleged “assumption” by Dr Leung that the applicant had “lost self-control easily”, we were not by any means persuaded that the terms of the referral revealed on her part a closed mind to this issue.  Dr Leung was merely setting out at the commencement of her report the reason she had been given for the applicant being referred to her.  The remainder of her report dealt with her appraisal of the applicant in all ways relevant to her assessment of him, having been given a background knowledge to the case itself from the prosecution’s witness statements.  On the face of her report, Dr Leung arrived at her conclusions having made an independent assessment of the applicant’s psychological conditions.

29.It is clear, secondly, that the report included material which, as Mr Poll accepted, was inadmissible.  An example of this was Dr Leung’s opinion that the applicant’s intention “could be simply to scare the deceased to release his own mounting tension”.  In this context, Mr Saw pointed out that it had been the application of defence counsel at trial to have the report of Dr Leung produced “in its entirety”.  However, the fact that certain parts of the report were inadmissible would not in itself have been a bar to its admission in evidence.  The judge could have dealt with this by ordering that the parts which offended the rules relating to opinion evidence should be edited out of the document or, if Dr Leung was called as a witness, should not be led in evidence.

30.More significantly, in his helpful analysis of a number of leading authorities in respect of the development of the law relating to provocation, Mr Saw drew our attention to a number of cases where the courts have considered, if not expressly at least by implication, the extent to which evidence may be called on the subjective element in provocation.

31.In DPP v Camplin [1978] AC 705 at 717, Lord Diplock observed:

“To taunt a person because of his race, his physical infirmities or some shameful incident in his past may well be considered by the jury to be more offensive to the person addressed, however equable his temperament, if the facts on which the taunt is founded are true than it would be if they were not.”

Logically, this passage appears to permit, and in some cases would require, evidence to be called to establish that characteristic which renders the taunt or insult more offensive.  It assumes that evidence can be called to describe a shameful incident in the defendant’s past or a physical infirmity not readily identified.  In that particular case, the characteristic was the age of the accused.  Obviously, evidence could be called as to this, particularly if the defendant appeared to be older than he actually was.

32.Again in DPP v Camplin, Lord Simon (at p. 727), on the subject of the admissibility of evidence, concluded that whilst evidence of an infirmity or existing condition such as age, hunchback or race was permissible, he emphasised that it was impermissible to seek to call evidence of how a reasonable man possessed of that condition would respond.

33.Mr Saw also considered to what extent the Privy Council’s decision in Luc Thiet Thuan (above) may have altered the position expressed in DPP v Camplin.  He correctly observed that the subjective test in provocation was not the matter in issue either in the Court of Appeal or before the Privy Council in Luc Thiet Thuan.  That case was conducted on the assumption that the defendant had lost his self-control.  The issue was whether the mental infirmity of the accused was a matter properly to be considered for the purposes of the objective test in the assessment of the “reasonable man”.  In that case, the trial judge had ruled that evidence of brain damage which made the defendant prone to respond to minor provocation by losing his self-control and acting explosively was only relevant to the defence of diminished responsibility.  The Court of Appeal accepted that evidence of a pre-existing condition which rendered an accused more likely to be provoked was inadmissible unless the provocation was directed at that condition.

34.Digressing from Luc Thiet Thuan for a moment, it is not possible, in the application now before us, to make the assumption that the applicant lost his self-control.  This aspect of the applicant’s evidence was summarised by the judge as follows:

“Defence counsel had asked the defendant specifically, whether he had lost his self-control on the second occasion he had been rejected by the deceased for the use of the pillow.  The defendant said this in his evidence, ‘Had I not lost my self-control, I would not get the knife.  Had I thought about it carefully, I would not get the knife to scare him.’  When the court asked him to clarify whether he meant he had lost his self-control before he got the knives, the defendant said that was not what he meant.  He explained that it was when the deceased had held him down, then he had lost self-control.  But he added that when he had returned to the sampan to get the knife, he was a little out of control.  He said further, that it could be said that he had lost his self-control for two times, when he got the knives and when he was being held down by the deceased.  Finally, the defendant also told you that he did not know what is really meant by losing self-control.”  (Appeal bundle p. 16)

35.In Luc Thiet Thuan, in a passage (at p. 146) to which we have already referred, the majority observed that “that mental infirmity of the defendant, if itself the subject of taunts by the deceased, may be taken into account as going to the gravity of the provocation as applied to the defendant”.  Lord Steyn, in his dissenting judgment, was in no doubt that evidence of a personality disorder which makes an accused more prone to loss of self-control was admissible on the subjective test.  He cited (at pp. 149-150) three examples to illustrate where the difference of opinion between himself and the majority lay:

“Let me imagine the case where a woman shortly after giving birth to a child stabs and kills her husband during an argument.  She wishes to put to the jury as part of her defence of provocation that she was suffering from postnatal depression which rendered her more prone to loss of self-control.  A second example is the case where there is evidence that a woman, as a result of ill treatment by her husband, suffers from ‘battered woman syndrome.’  When taunted by her lover she stabs and kills him.  She wants to rely on evidence of battered woman syndrome as part of her defence of provocation.  The third example is a woman who suffers from a personality disorder which makes her more prone to loss of self-control.  During a quarrel she stabs and kills her husband.  She wants to rely on the personality disorder as part of her defence of provocation.  A common feature of the three examples is that in none of them can the woman in any way be said to be at fault in inducing her condition.  None of these cases can be explained away on a broad view of the provocative conduct of the husband or lover, i.e. the ‘last straw’ argument.  In all three cases the merits or demerits of the woman’s argument cannot be determined on a priori grounds: in the context of provocation it is a matter of fact for exploration in evidence.  But in all three cases the particular characteristic of the defendant is potentially relevant only in as much as it affects the degree of self-control of the defendant.

It is trite law that in all three cases relevant evidence of the woman’s condition may be placed before the jury.  To the extent that the particular condition falls beyond the experience of ordinary men and women such evidence may include opinion evidence by experts: see R. D. Mackay and Andrew M. Colman, ‘Equivocal Rulings on Expert Psychological and Psychiatric Evidence: Turning a Muddle into a Nonsense’ [1996] Crim. L.R. 88.  Such evidence by witnesses of fact or experts may be relevant and admissible on the subjective issue whether the woman had in fact lost her self-control.  Moreover, the trial judge would as a matter of fairness be bound to direct the jury that in regard to the subjective inquiry they ought to take into account the evidence as to the woman’s condition at the time of the killing.  But in my view the logic of the position of the majority is that in all three cases, whatever the strength of the evidence, the judge is as a matter of settled legal principle entitled, and indeed obliged, to direct the jury to ignore the evidence of postnatal depression, battered woman syndrome, and personality disorder when they consider the objective issue.  On this basis a trial judge would have to direct a jury along the following lines:

‘Members of the jury, you have heard evidence regarding the defendant’s postnatal depression.  When you deal with the first and subjective inquiry you must carefully consider the effect of that evidence.  But when you come to consider the second and objective inquiry, please put that evidence out of your mind.  It is irrelevant.’

In my view a jury would be rather puzzled by such artificially compartmentalised directions.”

36.Expressed in this way, the direction which Lord Steyn indicated would have to be given to the jury would indeed probably seem artificial and puzzling.  However, we doubt that such a direction would ever, in practice, have to be given.  We can see no reason why the objective test, suitably fashioned to the evidence given at trial, could not be given without further qualification.

37.Mr Saw also drew our attention to a passage taken from Lord Hobhouse’s dissenting judgment in R v Smith (Morgan) [2001] 1 AC 146 where, again, there was an acceptance that evidence could be called to establish a mental or some other abnormality when considering the factual or subjective limb in provocation.  Lord Hobhouse (at p. 185) said:

“There was (disputed) psychiatric evidence that at the time the respondent was suffering from a severe depressive illness which would have adversely affected his powers of self-control – ‘disinhibited him’.  There appears to have been no factual basis for suggesting that the respondent’s depressive illness had any relevance to the provocative behaviour of Mr. McCullagh as such nor that it had any relevance to its gravity as provocation.

Thus, central to the issue of law raised by this appeal is the purpose for which the evidence of mental abnormality is being treated as relevant.  It is common ground that section 3 and the common law of provocation require two questions to be answered.  The first is the factual, or as some prefer to call it the ‘subjective’ question : was the defendant provoked, whether by things said or done to lose his self-control and kill?  Since this is a factual question, evidence of any mental or other abnormality which makes it more or less likely that the defendant lost his self-control is relevant and admissible, as is any evidence concerning the defendant which helps the understanding or assessment of the evidence of what occurred.  In answering factual questions all relevant evidence is in principle admissible.  For such purpose it does not matter whether the evidence relates to something which would be described as a ‘characteristic’ of the defendant.  Thus, evidence may be relevant and therefore admissible that the defendant was at the time very drunk or under the influence of a hallucinogenic drug.  Such evidence may of course cut either way.  It may show that anything said or done did not affect the defendant’s conduct which was simply due to his delusions.  Or, it may show that something said or done which would not normally cause anyone to lose their self-control may have caused the defendant to do so.”

38.Earlier in that case, when Lord Slynn gave the first of the judgments of the majority, the argument was succinctly expressed (at p. 152) in these terms:

“The objective test of the reasonable man reached its high-water mark in your Lordships House in Bedder v. Director of Public Prosecutions [1954] 1 W.L.R. 1119.  The House refused to accept that physical or mental infirmity could be regarded as material in considering whether a man had been provoked and whether a reasonable man could have lost his self-control in the circumstances.

It is agreed that section 3 of the Homicide Act 1957 was intended to and did change the position at common law; it also defined the defence of diminished responsibility.  So in this case it is common ground that in considering whether the accused has been provoked to lose his self-control – sometimes described as the gravity of the provocation and said to be a subjective test – it is for the jury to take into account the personal characteristics of the accused.  But the Crown contends that when the question is whether a reasonable man would have lost his self-control, personal characteristics, subject to very limited exceptions, must be excluded.  Only in that way it is said can the test of a reasonable man objectively regarded be applied; only in that way can a uniform assessment be made.  Departures from that approach destroy the concept of a reasonable man by whose standard of control the behaviour of the particular individual is to be judged.

The respondent says that this approach is unfair and unreal and not required by section 3.  A person’s response to provocation must be judged by comparison with a reasonable man having the same relevant characteristics as he has.”

39.In an Australian case to which Mr Saw took us, he demonstrated from Masciantonio v The Queen [1995] 69 ALJR 598 (also considered by the Privy Council in Luc Thiet Thuan) that it seemed to have been assumed that evidence of the susceptibility of a defendant to provoking conduct was admissible.

40.It follows that, in our judgment, evidence of susceptibility to loss of self-control is admissible to the issue whether control was in fact lost.  Whether expert evidence is admissible on the point will depend on the evidence it is proposed to adduce.

41.In R v Weightman [1991] 92 Cr App R 291, a murder case where the admissibility of psychiatric evidence was the issue, McCowan LJ observed (at p. 297):

“At the end of the day however it is very much a question of the facts in a particular case.  It seems to us that the principle to be learnt from the cases, notably the case of Turner (supra), is that a psychiatrist’s evidence is inadmissible where its purpose is in effect to tell a jury how a person who is not suffering from mental illness is likely to react to the stresses and strains in life.  The point taken here is that the appellant has an abnormal personality, as was conceded by Mr Hunt for the prosecution at the trial.  What does the abnormal personality amount to however?  It seems to us that it is not something which is beyond the experience of normal non-medical people.  She is histrionic, theatrical and likely to say things to draw attention to herself.  The jurors had already heard this without objection from the probation officer.  They would know that there are people like that.  They knew that the defence was that in accordance with her nature that was what she had done here.  The jury had the advantage not merely of seeing her in the witness box, but also of hearing her on the tapes that had been made of the police interview.  We must conclude that the jury did not believe that this was a case where she had falsely confessed in order to draw attention to herself.  They concluded that her confession was true.

In our judgment they would not have been helped by having a psychiatrist talking about ‘emotional superficiality’ and ‘impaired capacity to develop and sustain deep and enduring relationships’.  In fact as Lawton LJ pointed out in the Turner case (1975) 60 Cr App R 80, 83 [1975] QB 834, ‘dressed up in scientific jargon it may make judgment more difficult’.”

42.The position in R v Weightman differed from the present case.  We are satisfied that the evidence of Dr Leung seemed to go “beyond the experience of normal non-medical people”.  If the judge was in doubt, looking at Dr Leung’s report standing by itself, that this was the effect of her opinion, it would have been appropriate to hold a voir dire to decide the issue of admissibility.  In fact, none was held.  The judge, in making his ruling, held:

“…. I would have thought that this issue is a question of fact to be decided by the jury based on the evidence of what had transpired between the defendant and the deceased at the material time.  Whether someone would more easily lose his control or otherwise is neither here nor there.

However, Dr Leung stated in the beginning of her report that the defendant being referred to her was for a report to understand why he had lost his self-control so easily.  She appeared to (have) proceeded on the basis that the defendant had indeed lost his self-control.”  (Appeal bundle pp. 153-154)  (Emphasis added)

43.As we have shown, from previous decisions of the courts relevant to this issue, the judge was in error, as Mr Saw conceded, to have ruled that whether someone would “more easily lose control or otherwise is neither here nor there”.  Dr Leung’s evidence was capable, if accepted, of showing that the applicant was someone whose condition rendered him more likely to have lost his self-control.  Moreover, as we have said earlier, the “referral” (set out in paragraph 15 above) was not, with respect, to be taken as an acceptance on Dr Leung’s part that the applicant “had indeed lost his self-control”.

Conclusion

44.In all the circumstances, we have concluded that the evidence of Dr Leung, so far as it was relevant to the subjective test of provocation, was wrongly excluded from the jury’s consideration.  This was not a matter on which we have thought it necessary to consider the proviso.

45.Accordingly, we shall grant leave.  Treating the hearing as the appeal, we allow the appeal and quash the conviction.  Having heard counsel as to the appropriateness of a retrial, to which Mr Poll raised no objection, we shall order a retrial on a fresh indictment for murder.  The applicant will in the meantime remain in custody pending his retrial.

Mr D.G. Saw, SC, DDPP and Ms June Cheung, GC, of the Department of Justice, for the Respondent.

Mr Michael Poll, instructed by Messrs Alvin Cheng & Rosaline Choy (assigned by Director of Legal Aid), for the Applicant.