Fong Ma Sum @ Fong Sum v. The Queen
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CACC000674/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 674 OF 1973 -----------------
----------------- Coram: Full Court (Briggs, C.J., McMullin and Pickering, JJ.) Date of Judgment: 26th November 1973. ----------------- JUDGMENT ----------------- McMullin, J.: 1. The appellant and the deceased were two of four persons all cobblers by trade, who shared the premises at No. 754, 6th floor, Block 9, Tai Hang Tung Resettlement Estate. They had apparently shared these premises amicably for some years and there was no history of previous bad feeling. 2. On the night of the 23rd/24th of April the appellant returned to the premises at about 11.00 p.m. following a meal which had included noodles and some wine. He found the deceased and one of the other cobblers, the witness, LO Ming, at home. At some point thereafter both the accused and LO Ming left the room to wash some of their clothing but it would appear that they did not do so together and did not encounter each other outside. At all events when LO Ming returned to the room he found the appellant and the deceased sitting or lying upon their respective beds. LO Ming's foot was paining him at the time and he began to boil some water to bathe it. The deceased apparently observed this and because, according to LO Ming, all of the co-tenants were aware that LO Ming suffered with his foot, the deceased offered him a bottle of Tiger Bone wine and asked him to apply some of the wine to the foot and see if it would ease the pain. The appellant interjected to say that the wine would be worthless for that purpose and at this point the chain of events commenced which resulted in the death of the victim. 3. Up to this point everything which has been so far described is common ground between the defence and the prosecution but thereafter the account given by the principal prosecution witness, LO Ming and that given by the appellant himself diverge sharply. According to LO Ming, the deceased Wong, who appears to have been irritated by this interruption, accused the appellant of thinking that he was "smart in everything". The appellant got up from his bed and went over to where the deceased was and asked the deceased why he had made such accusation. The deceased was sitting on his bed at the time. Apparently no answer was given at that point and the appellant returned to his own bed but shortly afterwards went back to the bed on which the deceased was lying and said that he must have an explanation or he would "go as far as to chop him". According to LO Ming, the deceased, at this, sat upright upon his bed, the witness himself being then engrossed in the task of heating the water. The next thing that LO Ming saw was the appellant brandishing a chopper with which he struck twice at the deceased. The deceased was shortly afterwards removed to hospital but was dead upon arrival. Death was due to a wound in the neck which severed the internal jugular vein. 4. The story given by the appellant was quite different. He agreed that when he heard the deceased offering the wine to LO Ming he remarked that it would be useless for the purpose, but said that the deceased thereupon abused him in obscene terms, very familiar in these courts, and demanded of him how he could know that the wine was no good for the purpose. The deceased then went on to say "You always want to claim first in everything". To this the appellant said that he replied "Why do you say I always want to claim first in everything? I want an explanation from you" and that the deceased replied "What if I do not give you an explanation? Do you think I am afraid that you might hit me?" The deceased pushed him backwards and rushed at him with a stool. He caught hold of the stool in self-defence and then saw an object which he thougher was a wooden club sticking out of a bucket nearby picked it up and hit the deceased twice not realising that it was in fact a chopper. When he saw blood he immediately desisted in his assault. He then got LO Ming to dial 999 and surrendered by going to the police station himself. 5. In a summing-up which was admirably brief and clear the learned Commissioner put it to the jury that before they could convict of murder they must be satisfied that the appellant intended to kill or to cause grievous bodily harm, and that if they thought he might have intended some lesser harm they might convict of manslaughter. He also outlined to them the nature of the defence of self-defence and no question arises from the manner in which he put that matter to them. He then, however, went on to say that if they thought that the appellant had been defending himself but had used excessive force in doing so they might return a verdict of manslaughter. It was conceded by counsel that that was, in the present state of the law, a misdirection but again nothing turns upon it since it was entirely in favour of the appellant. 6. The only valid point raised upon the appeal arises from the only other possible ground upon which it might have been open to the jury to return a verdict of manslaughter. In ground 3 of the Grounds of Appeal it is complained that the trial judge wrongly withdrew the issue of provocation from the jury and, further or in the alternative, that he misdirected the jury on the law relating to provocation. Mr. Donnelly, who appeared in the court below as well as upon the appeal on behalf of the appellant, frankly admits that he himself had never suggested to the jury the possibility of the alternative verdict on the basis of provocation. He said that he had not done so because in his view at the time the argument between the appellant and the deceased was of such a minor nature that he did not anticipate that the jury would pay much attention to it. We are assured also that manslaughter, on the ground of provocation, was not referred to in the addresses of either counsel. The learned Commissioner however did refer to provocation and this is what he said:
Before turning to the strictly legal aspect of the arguments put forward under this ground it must be said that there was some justice in Mr. Donnelly's contention, that there was, in any event, in the passage just cited a minor misstatement of fact. It is true that the accused, in the course of cross-examination, did at one stage say that he was only slightly angry but this answer was given in reply to a question as to what had been the effect upon his mind of that part of the deceased's remark in which the deceased had challenged his view as to the efficacy of the herbal wine. With reference to the remainder of what the deceased was alleged to have said, and which was in fact an obscene reference to the accused's mother, he was asked whether he was very angry and he replied "Not so, not very angry." On the appellant's account of the matter there was a rapid crescendo of offensive behaviour on the part of the deceased culminating with a vigorous push and an apparent attempt to assault the appellant with a bamboo stool. As described by the appellant the push which he received caused him to stagger back several paces and the deceased then rushed towards him and snatched up the stool holding it in both hands over his head and aimed a blow at him with it at which point he seized the weapon which he thought to be a wooden club and, warding off the stool with one hand, struck out at the deceased with his weapon held in the other. 7. It was unfortunate that in giving his direction on the question of provocation the learned Commissioner appears to have focused on part only of the events which led to what - on the appellant's story - was a partly self-defensive partly retaliatory act. Be that as it may it is evident that one part of the appellant's story, the statement that he was only a little angry, was the part which determined the learned Commissioner to withdraw provocation from the jury. 8. Counsel upon both sides took us through a number of very familiar authorities upon this topic. In the course of doing so certain matters were touched upon which are not now directly in point such as, for example, the question of self-induced provocation. The real point at issue, however, was whether, upon all the evidence before us, both that for the prosecution and that for the defence, the learned Commissioner was justified in taking the view that there was no evidence of provocation fit to be put before the jury. The point is thus a narrow one but it is of vital importance. It may be useful therefore as a starting point to eliminate from further consideration certain general principles to which reference was made and which served as the framework within which the principal issue was debated, but concerning which it may fairly be said that the present state of the law is clear and is not in dispute. Thus it is not in dispute that it is for the Crown to negative provocation just as it is for the Crown to negative the defence of self-defence; [Woolmington v. Director of Public Prosecutions(1) and Mancini v. Director of Public Prosecutions(2)]; that evidence which may have been adduced in support of an unsuccessful defence of self-defence may, in whole or in part, be relied on as affording provocation sufficient to reduce the crime from murder to manslaughter since conduct which cannot justify may well excuse [Bullard v. Reg.(3)]; that every man on trial for murder has a right to have the issue of manslaughter left to the jury if there is any evidence on which such a verdict can be given and that to deprive him of that right must necessarily constitute a grave miscarriage of justice [Bullard v. Reg. (cited supra)]; that the statement in Holmes v. Director of Public Prosecutions(4) that where the provocation inspires an actual intention to kill the killing must, with the exception of the case involving the discovery of an adulterous spouse in flagrante delicto, amount always to murder is no longer to be understood as meaning that an intent to kill disposes of the defence of provocation; that since the decision of the Privy Council in A.C. of Ceylon v. Perera(5), followed in LEE Chun-chuen v. Reg.(6); Parker v. Reg.(7) the defence of provocation may, as the law now stands, arise even where the defendant does intend to kill or cause grievous bodily harm provided the evidence shows that at the time of doing so he was labouring under provocation within the meaning of the law. 9. Apart from these general principles counsel also referred us to section 4 of the Homicide Ordinance Cap. 339 which is in identical terms with section 3 of the English Homicide Act of 1957. There has been some discussion in the courts in England in recent years concerning the effect of these provisions upon the prior common law position relating to provocation generally. The section is in the following terms:
I agree with Mr. Nguyen for the prosecution that these proyisions have not altered the previously existing situation inasmuch as since the passing of the Ordinance the same two questions remain to be answered by the jury as before viz. (a) Was the accused in fact provoked into losing his self-control? and (b) Was his reaction that of a reasonable man? Likewise, I do not see any reason to differ from the opinion of Mr. Nguyen, an opinion which is echoed by several of the textbook writers on the subject, that the only change in the law which the section has made is to preclude the judge from deciding, once he has found that there is some evidence of provocation fit to go to the jury, that nevertheless it should not be left to the jury to consider because the reaction of the accused was not that of a reasonable man. In Smith and Hogan Criminal Law 2nd Edition the matter is neatly put at p.210 in the following terms:
This is, indeed, stated explicitly in the judgment of the Privy Council in Phillips v. Reg.(8) a case which, as will later be seen, is of considerable importance in relation to the topic under consideration. 10. In effect, therefore, there are three questions which arise and the first only is for the judge. It is for the judge, as a preliminary matter, to decide whether on the evidence as a whole there is matter which could amount to provocation in law. It is this most fundamental issue however which well may occasion the greatest anxiety on the part both of trial judges and judges upon appeal. Between the case where provocation is expressly raised and where there is clear and abundant evidence of it and the case in which it has not been raised, and there is little or nothing in the evidence to suggest it, so that to invite the jury to consider it would be to invite them to indulge in an act of pure speculation, there may occur cases in which the judge finds himself in real perplexity as to whether there is matter of sufficient substance to leave to the jury. 11. Perhaps the most helpful starting point on this topic is the Privy Council decision in LEE Chun-chuen v. Reg.(6), although, as will be seen, that case raises certain special perplexities of its own. In that case provocation as well as self-defence were put forward explicitly and the judges of the Judicial Committee considered four other cases in which the same situation had obtained. Those were: Rex. v. Hopper(9); Kwaku Mensah v. Rex.(10); Bullard v. Reg.(3) and Reg. v. Porritt(11). LEE Chun-chuen itself is helpful firstly because it establishes that the loss of self-control can be shown by inference instead of by direct evidence. The learned Commissioner in the present case was clearly greatly influenced by the appellant's own evidence that he was not very angry immediately before striking the deceased. It would seem an inescapable inference from what he said that he regarded that statement as more or less concluding the matter. But Lord Devlin, in delivering the opinion of the Board in LEE Chun-chuen v. Reg. said:
Later he said:
He went on to endorse the statement of Viscount Simon, L.C., in Mancini v. Director of Public Prosecutions(2) to the effect that it is not the duty of the judge to invite the jury to speculate as to provocative incidents, of which there is no evidence and which cannot be reasonably inferred from the evidence. It may be said, with respect, that that seems no more than commonsense for what is there supposed is a case in which there is no evidence whatsoever of provocation. That was, however, not the case in LEE Chun-chuen v. Reg.(6) where the appellant had contributed a narrative of events which included certain allegedly provocative acts on the part of the deceased and the Board, notwithstanding that it had found a misdirection upon the law of provocation in the summing-up of the trial judge, nevertheless came to the conclusion that there had been no miscarriage of justice because there was no sufficient material on that issue which therefore ought not to have been left to the jury. 12. Indeed it is this very distinction between a provocative act and true provocation in law upon which Mr. Nguyen relies in supporting the conviction in the present case. The appeal to the Privy Council in LEE Chun-chuen was from a decision of the Full Court of Hong Kong. That court had decided that although provocation ought to have been left to the jury no reasonable jury could properly have found manslaughter rather than murder in view of the nature of the injuries inflicted, the nature of the provocative act alleged and the circumstances generally. The Board took the view that this was not a proper exercise of the Full Court's power to apply the proviso but then went on to examine the evidence and came to the conclusion that it had not been sufficient to warrant the issue being left to the jury in the first place. Mr. Nguyen relies upon an earlier passage in Lord Devlin's exposition of the law in LEE Chun-chuen as showing the limits of a judge's duty in deciding whether or not to leave provocation to the jury. At p.232 Lord Devlin said:
It is at this point however that a real difficulty is raised for, notwithstanding the great authority of that eminent judge, it is apparent that this clear and forceful proposition is immediately thereafter supported by reference to what was said by Viscount Simon in Holmes v. Director of Public Prosecutions(4) and which was in these terms:
That direction was, of course, given before the passing of the Homicide Act. The first part of it makes it clear that it was the opinion of Viscount Simon that the preliminary duty of a judge is to decide not whether there is any evidence fit to go to the jury that the accused was in fact acting under provocation but whether "a reasonable person so provoked" would react as the accused reacted. He was that is to say leaving to the judge a function which, as was noted above, the Homicide Act (and of course our Homicide Ordinance), appears specifically to have removed from the sphere of the judge's competence. Although, therefore, Lord Devlin was dealing with a case which had occurred several years after the passing of the Homicide Act he follows the line taken by Viscount Simon when he turns to consider, in the case then before the Board, the nature of the act of provocation relied upon by the appellant. Having quoted the passage set out above from the judgment in Holmes Lord Devlin said:
In Phillips v. Reg.(8), however, the Board expressly stated that the decision in Holmes - with particular reference to that part of it which embodied the test proposed by Viscount Simon and approved in LEE Chun-chuen(6) by Lord Devlin - had been reversed by section 3 of the Homicide Act of 1957 and that it was no longer for the judge to determine by way of preliminary ruling whether the alleged provocation was such as to deprive a reasonable man of his self-control. It would seem to follow, therefore, that such of the opinion in LEE Chun-chuen as relied upon the test laid down by Viscount Simon must likewise be regarded - although LEE Chun-chuen was not mentioned by the Board in Phillips - as having been reversed by the statutory provisions. It is clear, however, that the remaining statements of principle in LEE Chun-chuen continue to be regarded as good law. This is of importance in the instant case for the passage from the decision in LEE Chun-chuen upon which Mr. Nguyen particularly relies contains a succinct analysis of the elements of provocation and of the duty of the judge in relation thereto, a passage which was quoted and approved in extenso in Walker v. Reg.(12) a case dealt with by the Privy Council some two weeks after the decision in Phillips. In LEE Chun-chuen Lord Devlin said:
In resorting to that statement of principle, Fenton Atkinson, L.J. in Walker was dealing with a submission to the effect that the rule that retaliation must be proportionate to the provocation had been supplanted by the words of section 3 of the Homicide Act of 1957. He said:
He then went on to quote the passage set out above from LEE Chun-chuen. Lord Devlin's words were also, though inferentially, approved by the Court of Appeal (Criminal Division) in Reg. v. Brown(13) in the course of a judgment in which the matter principally decided was that the "reasonable relationship" rule is not a rule of law but is simply something which the jury should be instructed to consider when asking themselves the question posed by the words of the statute viz.: whether the provocation was enough to make a reasonable man do as the prisoner did. 13. The point to be noted however is that Lord Devlin in proposing proportionate retaliation as the third element of which there must be some evidence before the issue can pass to the jury, expressly invoked the principle in Holmes and this with the rest of the same passage was approved in Walker. It would appear, therefore, that the Board in both cases regarded the question: "did the retaliation bear a reasonable proportion to the provocation?" and the question: "would the provocation be enough to make a reasonable man so react?" as being for all intents and purposes the same question differently phrased. This view of the matter is clearly endorsed in Phillips(8) where Diplock, L.J. at p.134 referring to the words of Viscount Simon L.C. in Mancini v. Director of Public Prosecutions to the effect that the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter, went on to say:
14. The same equation appears from what Lord Devlin himself said in LEE Chun-chuen at p.232, in relation to the alleged act of provocation:
This rhetorical question pre-supposes that the effective consideration in determining what would be the reaction of a reasonable man in the given circumstances is whether that reaction can be said to bear a reasonable proportion to its ostensible cause, and that all that a judge must do in determining whether there is evidence of the third of the three constituent elements of provocation - proportionate retaliation - is to ask himself whether any reasonable man would have so reacted. If that is the sense of these passages it is difficult to see how the judge can follow the principle laid down in LEE Chun-chuen(6) without invading the statutory preserve of the jury. 15. It might, therefore, seem that there is some disarray in the authorities on this important matter and, in particular, that there is a discordance between the statements of principle in LEE Chun-chuen, approved in Walker, and those stated in Phillips. The collision may, however, be more apparent than real. It will be recalled that in LEE Chun-chuen Lord Devlin said:
It would seem the preferable view that this statement is to be regarded as the true gist of the whole passage from his judgment upon which the Board relied in Walker v. Reg. It seems very unlikely that their Lordships of the Privy Council in any of these cases intended to lay down a rule which would enable a trial judge to poach upon the statutory preserve of the jury more especially in view of the clear rejection of that approach in Phillips v. Reg. There is he ever, no conflict between these judgments if the proposition enunciated by Lord Devlin is construed in a somewhat more limited way than the actual words used would seem to suggest. The difficulty raised by the actual words used arises from the fact that the judge's right to leave provocation to the jury is said to be restricted to cases where the evidence shows "a credible narrative of events suggesting the presence of" (a) an act of provocation, (b) an actual loss of self-control (the inclusion of the additional requirement that the evidence should also show a reasonable loss of self-control is tautologous since that element is already allowed for in the third of the elements to which he refers and which is:) (c) a retaliation proportionate to the provocation. The first two of those elements can be regarded broadly as concerning themselves solely with matters of fact but the third is wholly a matter of opinion and while it makes sense to ask: "Is there some evidence of a provocative act?" and also to ask: "Is there some evidence of a loss of self-control?" the third question suggested by this analysis makes very little sense at all viz. "Is there some evidence suggesting that the retaliation was proportionate to the provocation?" The only way in which that question can be answered is by looking to whatever answers had been returned to the first two questions and, assuming that there is some evidence suggesting an act of provocation and a loss of self-control, then to address oneself to the question whether a reasonable man so provoked would have reacted in such a way. It is difficult to see what other consideration could be relevant to determining whether or not the act of retaliation bears a reasonable proportion to the act of provocation and the fact remains that this question of opinion is one expressly left by the statute exclusively in the care of the jury. It would seem therefore that Lord Devlin is to be understood in this sense: that in deciding whether or not provocation ought to be left to the jury the trial judge looks first to such evidence as may suggest the presence of the first two elements and where that evidence is slight he may guide himself by the perceived disproportion between the act of retaliation and the alleged act of provocation in deciding whether the act of provocation can truly be regarded as such or as a wholly inconsiderable trifle; and further, whether there can be said to have been a genuine loss of self-control as distinct from a calculated choice of vengeance. Any such disproportion may help to guide him to a conclusion that the narrative of events including, as alleged, an act of provocation and a loss of self-control is insufficiently credible to be left to the jury. 16. Whether or not there is any substance in these misgivings concerning the ratio in LEE Chun-chuen v. Reg. it is plain, however, that, as the law stands, it is not only within the power of the trial judge but it is his duty to decide whether there is, in the words of the Ordinance, "evidence on which the jury can find that the person charged was provoked ...." The words "can find" must mean in this context "could reasonably find" or "might reasonably find" and they have been interpreted judicially to cover not only the situation in which there is literally no evidence whatsoever of provocation but also cases where the evidence is so flimsy, contradictory, fanciful or otherwise so patently unreliable that the jury ought not to be troubled with it. In the present case as in LEE Chun-chuen v. Reg. self-defence was specifically left to the jury by the trial judge. In both cases the jury rejected that defence. In LEE Chun-chuen v. Reg. the alternative of manslaughter on the basis of provocation was left to them and the judges of the Judicial Committee came to the conclusion that the conduct on which the appellant relied was insufficient either to justify or to excuse the act of killing. They came to that conclusion however because the only act of provocation which they found to be shown credibly upon the appellant's story was not at once followed by the retaliatory act which killed the deceased. If it had been then, although in the opinion of their Lordships the nature of the provocation was slight, the matter might have been left to the jury if the accused had given "a plausible enough account of gradual loss of self-control to which other incidents besides the original injury contributed". In the present case the several individual incidents which, on the appellant's story, constituted the misuse of him by the deceased mounted quickly one after the other to the point at which he was physically assaulted and threatened with a stool. I am certainly not disposed to say that this could not amount to a credible narrative of events such as was capable of suggesting that he had been provoked into a loss of self-control in view especially of the total absence of evidence of previous bad blood and the only eye-witness admitted preoccupation with his own ailment at the time of the incident. In my view this story, if the jury were disposed to consider it true, amounted to more than a mere provocative incident and was capable of constituting provocation within the meaning of the law. I would add that it must be a rare case in which evidence of an instantaneous reaction to a physical assault is found sufficient to leave to the jury as self-defence when the judge is nevertheless justified in telling the jury that if self-defence fails there is nothing sufficient upon the evidence to constitute provocation in law. I take the view that what the learned Commissioner did in the present case amounted to a serious misdirection on the question of provocation and conformably with what was said by the Privy Council in LEE Chun-chuen v. Reg. I do not think the proviso ought to be applied. The appeal will be allowed. The conviction for murder will be set aside and a conviction for manslaughter will be substituted there for. In all the circumstances I consider that a sentence of five years imprisonment would be appropriate. Representation: J.D.M. Donnelly (Hoosen & Co.) for appellant. P. Nguyen, Crown Counsel, for respondent. (1) (1935) A.C. 462 (2) (1942) A.C. 1 (3) (1957) A.C. 635 (4) (1946) A.C. 588 (5) (1953) A.C. 200 (6) (1963) A.C. 220 (7) (1964) 2 All E.R. 641. (8) 53 Cr. App. R. 132 (9) (1915) 2 K.B. 431 (10) (1946) A.C. 83 (11) (1961) 1 W.L.R. 1372 (12) 53 Cr. App. R. 195 (13) (1972) 2 ...(illegible) B.D. 234 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 674 OF 1973 -----------------
----------------- Coram: Briggs, C.J., McMullin & Pickering, JJ. Date of Judgment: 26th Nov., 1973. ----------------- JUDGMENT ----------------- Pickering, J.: 17. The facts of this case have been lucidly set out by my brother McMullin and to them I need not further allude. 18. The appellant was convicted of murder, the jury having rejected the defence of self-defence, and having had that of provocation withheld from them. I agree that such withholding was a misdirection of a nature too serious to warrant the application of the proviso. 19. The learned commissioner's stated reason for withholding the issue of provocation from the jury was that the appellant had said in evidence that at the time of the incidents which led to the killing he was a "little" angry. In fact the appellant had said that at the time the remark was made concerning his mother he was angry but "not very" angry; at a subsequent stage of his cross-examination he described himself as being, as a result of that remark, "a little" angry; at the stage when the deceased was said to have scolded him, asking him how he knew that herbal wine was not effective, the appellant described himself as "slightly" angry. There appears to have been no evidence as to the degree of his anger, if any, at the stage at which the deceased was said to have attempted to attack him with the bamboo stool. The learned commissioner's process of thought was clear; namely, that having regard to the requirement of a loss of self-control in an accused person before the doctrine of provocation can come into play, the appellant's assertion as to being angry to only a small degree blocked his approach to the defence of provocation. That, however, is not the law. In the case of LEE Chun-chuen v. Reg.(1), a case in which the twin defences of self-defence and provocation were run, it was held in the Privy Council that failure by the accused to testify to loss of self-control is not fatal to his case and that loss of self-control can be shown by inference instead of by direct evidence. Lord Devlin, delivering the opinion of the Board, went on to say:
20. For this reason I am of the opinion that it was incumbent upon the learned commissioner to leave to the jury the issue of provocation. That was not done and, whilst like their Lordships of the Privy Council in the case of Bullard v. Reg.(2), I do not shrink from saying that had the issue been left to the jury they would very probably have come to the conclusion that the killing in this case was unprovoked, this was nonetheless a function of the jury, and some words of Humphreys, J. in R. v. Roberts(3) are precisely apposite:
21. In Bullard, Lord Tucker went on to say:
22. The effect of withholding from the jury the defence of provocation was that the learned commissioner was either rejecting the version of events put forward by the appellant, whether or not in favour of that given by LO Ming, or alternatively, making a finding that even accepting the appellant's version of events, those events were not capable of amounting to provocation in law. In either circumstance he was invading the territory of the jury. The question whether or not insulting words were directed at the appellant by the deceased and followed by an attempt on the part of the latter to attack the former with a bamboo stool, was essentially one for the jury. Had the jury believed that these events happened there was then a situation in which the appellant had been subjected to scolding by the deceased, including the employment of the expression "fuck your mother" and to an attempted attack upon him with a stool. 23. Apart from the fact that the scolding included an allegation that the appellant regarded himself as very smart and was something of a know-all, the precise nature of the language said to have been employed by the deceased, was unknown to the learned commissioner and to the jury since the appellant could not recall the precise words used by the deceased; with the exception of the phrase which I have quoted, there was no verbal material which the learned commissioner could have left to the jury as possibly constituting provocation; and, for my own part, I do not consider that the phrase "fuck your mother" would, of itself, have justified leaving the matter to the jury since that well-known Cantonese admonition is employed so frequently, as is the experience of these courts, as to have had stripped from it much of the original literal offensiveness. 24. The attempt to attack with a bamboo stool however, if believed by the jury, was another matter and in my view there can be no doubt that the learned commissioner should have left to the jury the question whether the insulting language coupled with this attempted attack upon the appellant, amounted in law to provocation. 25. It is to be observed that the wording of s.4 of the Homicide Ordinance, Cap. 339, is mandatory. The section reads:
26. It will be recalled that in the case of Holmes(4) it had been laid down that although the question whether a reasonable man would have reacted in the same way that the defendant did was one for the jury, it was also the function of the judge to make a preliminary ruling as to whether or not the provocation was such as could provoke a reasonable man to react to it in the way in which the defendant did. Since the enactment of the Homicide Act in 1957 that however, has no longer been the law in England nor, since the enactment of corresponding provisions in the Homicide Ordinance in 1963 in Hong Kong, is it the law in Hong Kong. In the case of Phillips(5) a Privy Council case, it was said that in Holmes v. Director of Public Prosecutions(4):
27. Similarly was it reversed by the enactment in 1963, of the Homicide Ordinance, in Hong Kong. 28. I am accordingly of the opinion that the verdict of guilty of murder cannot stand in this case. I agree that that verdict be quashed and a verdict of guilty of manslaughter substituted therefor. The sentence of death imposed upon the appellant is also quashed and substituted by a term of 5 years imprisonment. Representation: J.D. Donnelly (DLA) assigned for appellant P. Nguyen, C.C., for Respondent (1) 1963 A.C. 220 (2) 1957 A.C. 635 (3) (1942) 28 Cr. App. R. 102 (4) 1946 A.C. 588 (5) (1969) 53 Cr. App. R. 132 |