Case Document

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CACC001122/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 1122 OF 1974

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BETWEEN:
	CHAN Ka-shing	Appellant
	and
	THE QUEEN	Respondent

Coram: Briggs, C.J., Huggins & McMullin, JJ.

Date of Judgment: 25th April 1975.

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JUDGMENT

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1. The appellant was found guilty of murder and sentenced to death. He appeals against his conviction. It is not necessary to set out the facts of the case. Various grounds of appeal were put forward but it is only necessary to deal with one: namely, that there was an inadequate direction to the jury as to the burden of proof on the issue of provocation.

2. Part of the case for the appellant in the court below was that he was provoked by the deceased and that the blow which caused the death of the deceased was provoked. The learned trial judge summed up this part of the defence in the following words:-

"There is another defence to a charge of murder called provocation, and that is a defence which has the result of reducing murder to that lesser kind of killing which we call manslaughter. Provocation was described in a classic direction to a jury as follows:-

'

Provocation is some act or series of acts done by the dead man to the accused which would cause in any reasonable person, and actually caused this in the accused a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.' The accused has told you in his evidence that he was angry because having set out as a mediator to stop a fight, he was himself the victim of an attack, which is, I think, rather apt to happen; especially if you intervene between husband and wife, for example. But he did not go to the extent of saying that he was in a blind fury about it. And even then, of course, what you do under provocation has to bear some relation to the attack that is being made upon you. But that alternative verdict of manslaughter I leave to you, if you felt that this accused was so provoked by the attack upon him that he temporarily lost his self-control, and reasonably in the circumstances. The alternative verdict of manslaughter would also be open to you if you felt that although the accused intended violence to the deceased, he didn't intend really serious violence - he didn't intend to kill or to do very serious violence."

3. In view of the way the defence was presented, it was necessary in this case for the trial judge to address the jury on the question of provocation. Counsel for the appellant drew our attention to two cases, Prince⁽¹⁾ and McPherson⁽²⁾. The headnote in the latter case reads as follows:-

"Where on a charge of murder provocation is relied on by the defence, the jury should be directed that the onus of proving absence of provocation remains throughout on the prosecution, and that, if the jury are left in doubt whether the facts show sufficient provocation to reduce the killing to manslaughter, that issue must be determined in favour of the prisoner."

4. In the present case, it was not clearly put to the jury that the burden of proof to show that there was no provocation remained with the prosecution throughout and that it was not for the appellant to prove that he was provoked.

5. In the event, and with considerable reluctance the appeal against conviction was allowed and a conviction of manslaughter was substituted therefor. The appellant was sentenced to ten years' imprisonment.