The Queen v. Wong Chung Ming

CACC000502/1985

BETWEEN

Coram: Roberts, C. J. Yang, J. A. & Penlington, J.

Date: 30 April 1986

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JUDGMENT

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[Provocation]

Roberts, C. J. -

Preliminary

1. The appellant appeals against his conviction for the murder, on 6th May, 1985 of CHOW Wai-hung. At the time of the murder the defendant was aged 19 and the victim was a boy of 13, who was the brother of a woman with whom the defendant had been living for some months.

2. The main facts were not seriously in dispute at the trial, The issue was not whether the defendant killed the boy but whether there was provocation of such a nature as in law might have reduced what would otherwise have been a murder to manslaughter.

Facts

3. The evidence was that the defendant had been living with CHAU Yuen-hung ("Yuen-hung"), his girlfriend, from November 1984. There seems to have been no previous history of tension between the victim and the defendant.

4. Yuen-hung had been working for some time as a dance hostess. Shortly before the 6th May, 1985, the defendant asked her to stop doing so. It seems likely that he made this request after the girl had told him that she was pregnant by him.

5. On 4th May, Yuen-hung left the premises in which she had been living with the defendant and spent the night with a man called Kwan. On the morning of 5th May, she phoned the defendant on a number of occasions. During the first call she told him that she was working again as a hostess and the defendant asked her to come back. When she phoned again, the defendant said that he would catch her younger brother and take him to their home. Yuen-hung then made calls to her parents' house to warn her brother, in view of the threat levelled against him by the defendant. By the time she called her parents' home, the defendant had already arrived. He again asked her to return to him. When she refused, he said he would catch her brother, whom he thereafter lured to his premises by telling him that they were going to collect something.

6. After they had arrived there the defendant phoned from his premises to the nightclub where the girl was working. On this occasion, the defendant told her that if she did not return by mid-day, her brother would be chopped. He also arranged for the brother to speak to her, which lie did asking her to return to the defendant.

7. The young boy told the defendant that he wanted to leave the premises because he was late for school, whereupon the defendant caught him, threatened him with a chopper, took him to a cubicle when he tried to leave, and tied him up.

8. The boy became very distressed and screamed and the defendant took an electric wire and pressed it against the boy, giving him a number of electric shocks, which must have caused the burn marks later found on his body by the pathologist.

9. Yuen-hung telephoned again and told the defendant that she would not return to him. The defendant replied that, in that case, he was going to chop the younger brother's head off. She said she would come in 15 minutes. Instead of doing that, she telephoned the police, who arrived some while later. When they did so, the defendant struck the boy in the throat with the chopper, causing wounds from which he subsequently died in hospital.

GROUNDS OF APPEAL

Definition of "manslaughter"

10. The first main ground of appeal advanced was that the trial judge had misdirected the jury in relation to the difference between murder and manslaughter, by directing them in the following terms, having first defined "murder" in a way against which no criticism has been levelled -

"'Manslaughter' is:

by an unlawful act causing the death of another person without there being an intention to cause grievous bodily harm or death."

"The difference between them, you will see is that in murder the law requires an intention to kill or to cause grievous bodily harm whereas that intention is absent in manslaughter."

11. The definition of "manslaughter" is correct, in the sense that it is possible for a defendant to be convicted of manslaughter without the Crown having established any intention to kill or to cause grievous bodily harm. This kind of manslaughter is sometimes referred to as involuntary manslaughter.

12. However, what is called "voluntary manslaughter", occurs where the crown has established all the elements of murder, including an intention to kill or to do grievous bodily harm, but the offence of murder is reduced to manslaughter by reason of provocation, diminished responsibility or a suicide pact.

13. We do not think that the jury can have been misled by this reference to involuntary manslaughter because, shortly afterwards in his summing-up, the judge says -

"Before you could consider provocation you must first be satisfied that the Crown has proved murder."

14. He is thus warning them that this was a case in which they must first be satisfied that the Crown had established murder, which he has defined as killing with an intention to kill or to do grievous bodily harm. He went on -

"Then you must ascertain if, at the time of the murder, the defendant was acting under provocation."

15. The jury must, therefore, have been in no doubt that they had to be satisfied, before they went any further, that the Crown had established that the defendant intended to kill or to cause grievous bodily harm.

16. In view of the other evidence at the trial, it is difficult to see how they could conceivably have reached any other conclusion.

Direction as to provocation

17. The second main ground of appeal was that the judge, when directing the jury to consider the defence of provocation, erred in his direction as to the criteria which the jury should consider in dealing with the question of a reasonable man.

18. The submission made on the defendant's behalf in relation to this ground, relies substantially on the House of Lords case of The Queen v. Camplin ¹ in which the general principles governing the direction which should be given by a judge on the issue of provocation are set out.

19. It is not in dispute that it is for the judge to decide if there is any evidence that the defendant lost his self-control as a result of provocation, however slight if he concludes that there was, he must leave the issue of provocation to the jury. This the judge did, informing them that it was for them to decide if the provocation was such as to make a reasonable man act as the defendant did.

20. A number of complaints are made, however, as to the manner in which he summed up in relation to the test of the reasonable man.

21. At the top of page 101 of the summing-up the judge observes -

"The law leaves it to you, men and women of this world, to decide what a reasonable man is, and then, having decided the answer to that, do you think that a reasonable man would do what the defendant did in this case?"

22. He amplifies this direction in a later passage

"I tried to set out as best I could what a reasonable man was. Now, there is just something in relation that I would like to add to that - what I have already said to you-and it is this. A person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, of the sex and age of the accused, whether he was that type of person."

23. The jury, after retiring, returned and asked the judge for further directions on this subject. The judge responded in the following terms -

"A 'reasonable man' is an ordinary person possessed of such powers of self-control as everybody is entitled to expect that his fellow citizens will exercise in society as it is today. And the reasonable man is also a person having the powers of self-control to be expected of an ordinary person of the sex and age of the accused and sharing the accused's characteristics."

24. In the first quotation, the judge appears to have told the jury that it was for them to decide what a reasonable man is. However, in the two later passages quoted above, he set out his own definition of a reasonable man. We do not think, therefore, that the jury were left, at the end of the trial, in any doubt that they should follow the judge's definition of the reasonable man.

25. It was also argued that there was no direction as to the sex, age and background of the defendant. Although no such reference appears in the early direction about the 'reasonable man', it does appear in the later ones, which were adequate in those respects.

26. It was next urged upon us that the judge gave no explanation to the jury of what "characteristics" are. In the last quotation there seas a reference to "the age of the accused and sharing the accused's characteristics."

27. In D. P. P. v. Camplin¹, Lord Diplock observed, at page 21, when dealing with the proper direction to be given to a jury -

"The judge should state what the question is using the terms of the section (that is to say section 3 of the Homicide Act (1957). He should then explain to then 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 would react to the provocation as the accused did."

28. If this advice is followed, in the literal terms in which it is expressed, this passage is likely to confuse rather than to assist the jury, unless when referring to the accused's characteristics affecting the gravity of the provocation, the judge informs the jury as to what matters are capable of amounting to the sort of characteristic, peculiar to the accused, which can be taken into account.

29. In Camplin¹, a number of examples of characteristics peculiar to defendants, which might be relevant in certain circumstances, were given, though it was stressed that these were matters for the jury. Among these examples were, the accused being of a particular colour or ethnic origin or impotent or a dwarf, suffering from an abscess in the cheek when struck, or, in the case of a woman, undergoing menstruation or menopause.

30. Other authorities, however, have made it clear that it is not right to invest the hypothetical reasonable man with the unusual mental or temperamental qualities of the defendant, for example, that he was unusually excitable, or pugnacious.

31. So we conclude that the judge ought to have given the jury some direction as to what is meant by the accused's characteristics. However, the evidence disclosed no peculiar characteristics that he could have told him to take into account, other than the sex and age of the defendant and his background in society, matters to which their attention was drawn.

32. It was also complained that the Homicide Act had not been read out to the jury as recommended by Lord Diplock in Camplin¹. That passage should not be interpreted as laying upon a judge an obligation in every case in which provocation is an issue to read out in full section 4 of the Homicide Ordinance, provided that the provisions of that section are properly and clearly put before the jury.

33. The only respect in which it was suggested the jury had been at fault, so far as the substance of section 4 is concerned, was that he had not in terms told the jury that they were to take into account everything done or said according to the effect which, in their opinion, it would have had on a reasonable man

34. There is, however, nothing in the summing-up that we have been able to find which suggests that the judge could have given any impression to the jury other than that when deciding this issue, as in deciding the others they were to take into account the whole of the evidence which had been put before them.

35. It may well be that, as a result of some of the earlier passages in the judge's direction as to provocation, the law on this difficult subject was not expressed as consistently and clearly as it should have been. Nevertheless, we have no doubt that if a direction in more precise and more accurate terms had been given, the effect could only have been exactly what it was.

36. There was no evidence upon which any reasonable jury could have come to the conclusion that there was sufficient provocation such as would have caused a reasonable man of the accused's age, sex and background to act as this defendant did.

Miscellaneous criticisms

37. We were offered an assorted group of smaller criticisms of the judge's summing-up. The first, that he referred at the outset of his summing-up to it being a "horrible murder". We suppose that, strictly, he should have called it a "horrible killing". It can surely only have been a slip and the jury are hardly likely to have attached any importance to it in view of the summing-up which followed.

38. Secondly, it is said that he was wrong to tell the jury that the Crown's case against the appellant was that the appellant was motivated by revenge when this had not been the subject of evidence and had not been put to the defendant when he gave evidence.

39. There are passages in the summing-up in which the judge does suggest that this was so. He purported to correct himself, at page 120 of the summing-up in the following terms -

"Another point that has been brought to my attention and that is that learned Crown Counsel did not use the term 'revenge'. That is quite correct. He didn't use it in the context in relation to this killing, but my interpretation of this case was that that is exactly what the defendant did, and it is for you, ladies and gentlemen, to decide for yourselves whether it was or was not. That was merely my interpretation. It was not mentioned by the Crown."

40. The judge has, therefore, made it clear to the jury that this was not part of the Crown's case but that it was his own suggestion as to the motive behind this killing. He warned them that it was for them to decide whether or not that was an accurate interpretation. At the outset of his summing-up he had given them the usual initial warning that, although he would offer to them observations as to quality and effect of parts of the evidence, they were to remember that these were his personal views, that they were offered in order to be of assistance to the jury but that the jury was not bound by them in any way. There is no substance in this submission.

41. The next objection was that the judge had told the jury that they might conclude that the defendant did not know of the pregnancy of the girl at the time of the offence when there was no evidence to support such an observation. The judge made this comment at page 98 of the summing-up in which he said -

"The defendant said he was annoyed at her working in a fishball stall when she was pregnant. He said he was the father. Members of the jury, there are something wrong here as, if she had to write to him in prison telling him she was pregnant lie could not have known about it before this incident and he could not have been worrying about it and her work in the fishball stall when she was pregnant. He did say in his own evidence that at the latter part, it was the third part of April she told him that she was pregnant."

42. Apparently during the course of the trial letters had come into the possession of counsel and the girl was recalled to the witness box so that questions about them could be put to her. This was abortive, because the girl became very distressed at the nature of some of the questions.

43. What seemed to emerge from this inconclusive cross-examination was that a number of letters had been written to the defendant in prison by the girl in which she mentioned her pregnancy, but not in terms which indicated that this was necessarily the first occasion on which there had been any mention of pregnancy between them.

44. When this was drawn to the judge's attention, at the outset of his summing up, he eve the following further direction -

"There was another matter that cropped up and that was in relation to the pregnancy. I was under the mistaken impression - well, I think mistaken impression - that the defendant found out for the first time as a result of letters that were sent to him in prison. You will remember when this young lady was recalled, a series of questions were put to her. We didn't get very satisfactory answers, but the questions there - it was in relation: 'Did you write letters to the defendant in prison mentioning pregnancy and abortion?' Mentioning. Now, that need not necessarily be for the first time ...... I could still be right, but on the other hand, the question was 'mentioning it'. So it could very well be that he did know beforehand, but you would have to come to your own conclusions on that."

45. So the judge has sought to redirect the jury by telling them that the question of pregnancy could have been discussed before and that the defendant mentioned it in his evidence. He did not, however, resile completely from his former comment because he said "I could still be right" and "it could very well be that he did know beforehand, but you have to come to your own conclusions about this".

46. We think it would have been better, on the evidence available to him, if he had directed the jury that they ought to be satisfied, in view of the evidence, that the girl had mentioned to the defendant before the murder took place that she was pregnant by him and that they should give such weight as they thought proper to this in considering the question of whether or not he had been provoked.

47. This is, however, only one factor in a case in which, as we have commented before, it is difficult to see how any jury could have come to the conclusion that a reasonable man would have reacted as the defendant did. If the jury had been directed to accept the knowledge of the defendant of the girl's pregnancy before the offence it would surely have made no difference to the ultimate result.

Photographs

48. The final ground which has been put forward relates to a photograph of a vivid, and disturbing nature showing the deceased boy with his throat cut open. The admissibility of these photographs was not challenged before the judge. What was challenged was whether they should, although admissible, be permitted to be put before the jury since the prejudicial effect which they might have would outweigh the probative value of it.

49. It is well established that a judge has a discretion as to whether he excludes evidence in such circumstances. The judge was aware of this and, after submissions by counsel on both sides, delivered his decision on the application of defence counsel to exclude these photographs from the jury in the following terms -

"This reveals the injury suffered by the deceased, and it is part of the Crown's case. It may very well be that the pathologist will deal with this matter when he gives evidence and that he will no doubt describe this. I see no reason why this should not be put before the jury in photograph form. The jury are judges of fact, they are expected to be able to deal with all matters that come before them in an objective manner. They are advised to, in a general statement by the court in all cases of this nature, to approach the case dispassionately. I will not exercise my discretion excluding it."

50. It must be rarely that an appellate court would be prepared to interfere with the discretion of a trial judge exercised in a matter of this kind. We see no reason to do so. To argue that a juror is unable, if she sees a photograph of this nature, to continue to discharge her duties with the necessary degree of dispassion is to take an unjustifiedly pessimistic view of the detachment and good sense of Hong Kong juries.

51. As an alternative argument in relation to these photographs, it was submitted that the judge should have discharged the jury because one of the female jurors, after the photographs had been distributed to the jury, threw them down, saying "Don't show me them again"; and shortly afterwards told one of her colleagues on the jury that she was not feeling well and had to be assisted from the room.

52. We do not think that the fact that a member of the jury has been upset by the graphic nature of some photographs is sufficient ground on which a judge should be obliged to discharge a jury. It may very well be that if a woman juror appears to suffer more than a momentary feeling of distress, the judge ought to consider it, but there is nothing in the record to suggest that, after the trial resumed, the female juror exhibited any further signs of distress.

53. In summary, therefore, we sec no substance in the grounds which have been put forward and the appeal must be dismissed.

1    [1978] 67 C. A. R. 14

Representation:

Mr. R. Whitehead (D. L. A.) for Appellant

Mr. A. P. Duckett, Q. C., Ag. D. P. P., with Mr. C. J.

Newall, C. C., for Respondent/Prosecutor