HKSAR v. Leung Pak Ming

CACC164/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 164 OF 2009

(ON APPEAL FROM HCCC 205 OF 2008)

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BETWEEN

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Before : Hon Tang VP, Yuen JA and Lunn J

Date of Hearing : 28 April 2010

Date of Judgment : 24 May 2010

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J U D G M E N T

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Hon Tang VP :

1.I have had the benefit of reading the judgment of Mr Justice Lunn in draft.  With respect, I agree with it, and for the reasons given therein I dismiss the appeal.

Hon Yuen JA :

2.I agree with the judgment of Lunn J.

Hon Lunn J :

3.The applicant appealed against his conviction on 24 April 2009, after trial before Mrs Justice Bokhary and a jury, of the murder of Ms Li Yui Yi on 7 March 2008 at her family home at Room 2206, Shek Kai House, Shek Lei Estate, Kwai Chung.  At trial, it was an admitted fact that the applicant had unlawfully killed Ms Li.  There was no dispute that the applicant had done so on the morning of 7 March 2008 by inflicting multiple injuries to her with two knives that he had purchased at about 7 p.m. the previous evening in Mongkok.  One knife, described as a ‘survival’ knife at trial was 35 cm in overall length with a double-edged blade, one of which was serrated, 22 cm in length.  The smaller knife was 18 cm in length, with a blade 9 cm in length.

THE TRIAL

4.There was no dispute at trial that the applicant was at least guilty of the offence of manslaughter.  On arraignment, he had tendered that plea, but it had been rejected by the prosecution.  In his testimony, the applicant confirmed that to be the case.  In the summing-up, the jury were invited to consider whether they were satisfied that the applicant was guilty of murder and, if not, whether he was guilty of manslaughter on several bases, namely by a dangerous and unlawful act, by reason of diminished responsibility or by reason of provocation.  There was no dispute that the applicant and the deceased had enjoyed an intimate sexual relationship and had cohabited at the applicant’s family home for more than half a year prior to cohabitation ceasing on 20 February 2008.

The prosecution case

5.In presenting its case on the basis that the applicant intended to kill the deceased, the prosecution relied upon his admissions to that effect and upon supporting circumstantial evidence.  It was an admitted fact that at 11:10 a.m. on 7 March 2008 the applicant had made a ‘999’ call and reported that he had killed his 19-year-old ex-girlfriend.  In face of being arrested for her murder at the deceased’s family home at 11:30 a.m. that day, and after having been cautioned, the applicant had said, “Sir, she broke up with me, I thus killed her.”

6.In the course of a video recorded interview conducted of the applicant commencing at 15:25 hours that day, the applicant admitted that he had bought the two knives on the evening of 6 March 2008 and “prepared to kill my girlfriend later on or on the following day.”  He went on to explain that he had “arranged” to kill her.  On 6 March 2008, he had learned from a colleague of the deceased that she was scheduled to work the following day.  He said that he knew that she would go to work at about 10:45 a.m. and guessed that no one would be at her family home.  As a result, he had waited outside her home until she emerged from the door to those premises, which he then entered with her.  The applicant said that he was sure the deceased’s affirmative response to his question as to whether or not she had another boyfriend was untrue.  He thought it was an excuse that she used to break up with him.  When she had her back to him, he drew out the survival knife and hacked at her neck When she fell to the floor he used both knives to stab her: the survival knife to stab from the position of her throat upwards to half the length of its blade and the smaller knife to stab her ten times at the position of the heart.  In response to separate questions as to why he had chopped and then stabbed her so many times, the applicant said twice, “I wanted her dead.”  Of why he had cut off her head, the applicant said, “To ensure that she was dead.”  Of the purpose of his having worn what was described as a ‘wristband’ on his right upper hand/wrist, the applicant said, “Stabilise my own wrist, so that I could chop at her harder.”

7.The prosecution case, as put to the applicant in cross-examination, but denied by him, was that he had purchased the two knives on 6 March 2008 intending to kill the deceased and that on 7 March 2008 he carried that plan out.  Further, that he had worn the hand/wristband in order to strengthen the power with which he could use the knives on the deceased.  Finally, that the applicant had made up his account of provocative conduct by the deceased in her premises at the time of the killing.  In respect of the issue of diminished responsibility, the prosecution relied on the opinion of Dr Yuen, a consultant psychiatrist, who said the applicant did not fall within the requisite parameters of that defence.

The defence case

Background

8.The applicant testified that while he was cohabiting with the deceased at his family home in June 2007 they had quarrelled, over her relationships with other men, as a result of which he had attempted suicide by cutting his left wrist.  He had done so to get her to return to him.  He accepted that he was jealous and possessive of her.  They resumed cohabitation until February 2008, when they quarrelled, again about her relationship with other men.  To his surprise, on 20 February 2008 she responded positively to his demand that she no longer live at his home and the cohabitation ceased.  On 24 February 2008, he went to the Mainland where he purchased a military knife and a fruit knife in order to commit suicide.  In the early hours of the morning of 25 February 2008, after his return to Hong Kong, he attempted suicide by cutting his left wrist with a pair of scissors and by ingesting over a hundred painkiller tablets.  He was hospitalised from that day to his discharge on 3 March 2008.

9.In the several days that followed his discharge from hospital on 3 March 2008 he contacted the deceased by telephone and SMS messages but his repeated attempts to arrange a meeting were unsuccessful.  On 5 March 2008 he met the deceased after he lay in wait for the deceased at her place of work.  She responded to his declaration that he wanted to get back with her, by saying that she wanted to be herself again, telling him not to look for her again.  Again they quarrelled and the deceased hid from him in the female washroom of a KFC outlet.  He accepted that, while she remained there for a considerable period of time, he had sent her threatening SMS messages demanding repayment of monies that he had expended on her behalf when they cohabited.  Some of the messages were accompanied by foul language.  After they had parted company he continued to send her SMS messages in the early hours of 6 March 2008.  In one message he asked her if she treated herself as a prostitute.  During that day he sent her messages conveying his love for her and his apologies for what had happened the previous day.

The events of 7 March 2008

10.The applicant testified that he had gone to the deceased’s flat on the morning of 7 March 2008 in order to meet the deceased to have a chat with her.  He took with him the survival knife and the smaller knife that he had bought the previous evening.  He intended to brandish the survival knife in front of the deceased threatening to kill himself, so that she would be frightened into coming back to him.  He carried the smaller knife in order to commit suicide, if she refused to do so.  In his evidence at trial, the applicant testified of provocative words and conduct directed at him by the deceased whilst the two of them were in her family home on the morning of 7 March 2008. 

11.In respect of the issue of diminished responsibility, counsel for the applicant relied upon evidence of the applicant’s state of depression, in particular Dr Yuen’s evidence that he suffered from an “adjustment disorder with depressed mood”, his two attempts at suicide and his irrational behaviour, evidenced by his attempts to win back the affections of the deceased by conduct which had the opposite effect.

12.Crucial to the issue of provocation, was the testimony of the applicant of his conversation with the deceased inside her family home on the morning of 7 March 2008.  He said that after he had gained entrance to the deceased’s flat she had not replied to his questions, first as to why she had not come to visit him whilst he had been hospitalized, following his attempted suicide on 25 February 2008 and, second whether she still liked him.  She responded in the negative to his enquiry as to whether or not they could get back together, saying that, “No one would like one’s boyfriend to often go to commit suicide.”  Again, she responded in the negative to his assertion that they truly loved each other.  She said that there was another man, adding :“You had been hospitalised for such a long time, yet I did not come to visit you.  You should realise what the matter is.”  In response to his enquiry why that had happened so quickly the deceased said, “Why not?  When I was together with you, this is the same case.”  The applicant said that, in response to his beginning to cry, the deceased had said :

“Don’t you fucking cry in my home!  Are you a man?  Now your hand is handicapped and you are jobless.  How can I be with you?

At some stage the deceased had observed that he had no money.  The applicant said that when he went over to the deceased to try and embrace her she had pushed him away telling him to leave and warning him that if he did not she would call the police.

13.The applicant said that the account that he had given to Dr Yuen on 7 May 2008 of that conversation, namely two months after the events, was accurate.  In particular, he confirmed as accurate his account that when he brandished the survival knife in front of the deceased, in response to his enquiry as to whether she really had a new lover she had uttered foul language and asked, “What can you do if, yes, with you, you no longer have any money”.

14.The applicant testified that as a result of what she had said to him he felt very angry.  He did not know why he was angry.  Later, in cross-examination he said that, in addition, she had made him angry when she pushed him away when he tried to embrace her.  He agreed with his own counsel’s suggestion that he had lost his temper and attacked the deceased.

15.The applicant testified that in various passages of his record of interview his answers to questions were not accurate, rather he had made them up.  In particular, his account that on 6 March 2008 he had prepared to kill the deceased the following day and that he had chosen to kill her were not true.  He explained that he wanted to tell the police that he had an “intent to go upstairs to kill her”, so that they would charge him with the offence of murder.  In fact he did not have that intention.  Similarly, his statement to the police that he had “arranged to kill her” was not true.  He said that the detailed account that he had given of how he had actually killed the deceased was made up and not true.  His answers to the questions as to why he had chopped and stabbed the deceased so many times, namely “I wanted her dead” and his reply to the question of why he had cut off her head, namely “to ensure she was dead” were not truthful answers.

THE SUMMING UP

16.In her summing-up, the judge left to the jury two possible verdicts, namely guilty of murder or guilty of manslaughter, noting that the applicant accepted that he was guilty of the latter.  Of manslaughter, the jury were directed that it was possible for them to reach their verdict on one of the following grounds, namely by :

(i)      determining that, although the applicant had unlawfully killed the deceased, he had not intended to kill her nor to cause her really serious bodily harm; or

(ii)      provocation; or

(iii)     diminished responsibility.

GROUNDS OF APPEAL AGAINST CONVICTION

17.Mr Loughran, on behalf of the applicant, advanced a single ground of appeal against conviction, namely that the judge had misdirected the jury in respect of the issue of provocation.  Firstly, he contended that she had failed to give the jury the requisite direction that they were to have regard to the issue of the gravity of the provocation to the applicant and that in doing so they were entitled to have regard to all of the evidence, in particular his history of suicide and depression, his injured and handicapped hand, his joblessness and lack of money, in light of which factors he was to be regarded as less than a complete/full man, when considering his evidence of his conversation with the deceased immediately prior to the killing.  In particular, it was in that context that they were to determine the gravity to the applicant of the taunts made by the deceased.  Secondly, he submitted that, in the absence of the requisite direction, the judge had misdirected the jury in directing them :

“But if you think that the accused had been, or might have been, provoked into losing his self-control so as to kill the deceased in a state of loss of self-control, then ask yourselves the next question, which is this: would an ordinary person of the same sex and the same sort of age as the accused have done what the accused did?”

18.That direction, so Mr Loughran, contended was to be viewed in the context of the twice repeated direction that even if they found that the applicant had been provoked into losing his self-control they could find him guilty of murder :

“… if an ordinary man of his age would not have been provoked into doing what he did.”

On the second occasion, the judge emphasised that the test was that of the ‘ordinary’ man :

“Do you think that an ordinary man of the accused’s age, or indeed any other age, would have been provoked into doing what he did?  Mark the word ‘ordinary’.  Mark the word ‘what he did’.  Remember what he did.”

19.In support of his submissions, Mr Loughran reminded the court that the Court of Final Appeal in Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354 at 367G-J, paragraph 33) had cited with approval a passage from the judgment of the majority of the Privy Council delivered by Lord Nicholls of Birkenhead in the Attorney-General of Jersey v Holley [2005] 2 AC 580 at 589, paragraph 6.  There, Lord Nicholls was addressing the ingredients of the defence of provocation, in particular the second limb :

“The second ingredient, often called the objective or evaluative ingredient, raises, in the language of the statue, ‘the question whether the provocation was enough to make a reasonable man do as he did… [taking] into account everything both done and said according to the effect… it would have on a reasonable man’.  Broken down, this objective ingredient has two elements.  The first element calls for assessment of the gravity of the provocation.  The second element calls for application of an external standard of self-control : ‘whether the provocation is enough to make a reasonable man do as he did.”

20.In his judgment in Ho Hoi Shing, Mr Justice Chan NPJ, with whom all the other judges agreed, noted of that passage in the judgment of Lord Nicholls that Lord Nicholls was adopting the comments made by Lord Hobhouse of Woodborough in R v Smith (Morgan) [2001] 1 AC 146 at 185F.  Together with Lord Millett, Lord Hobhouse was in the minority in Smith (Morgan).  Of the second and “objective” question, Lord Hobhouse said (page 186B) :

“This question itself contains two elements.  The first is the assessment of the gravity of the provocation.  The second is the assessment how a reasonable man would react to provocation of the gravity.  The second element involves applying a standard of self-control.  Essential to the understanding of the authorities and the issue on this appeal is the distinction between these two elements.  It is well-established and not in dispute that in assessing the gravity of the provocation everything both said and done must be taken into account and that this inevitably involves taking into account any peculiarity of the defendant which affects the gravity.”

THE SUBMISSIONS OF THE RESPONDENT

21.On behalf of the respondent, Mr Alex Lee, accepted that in directing the jury in respect of the second question that arises in provocation the judge had not directed the jury that they were to have regard to the issue of the gravity of the provocation to the applicant and that in doing so they were entitled to have regard to all of the evidence.  Mr Lee submitted that there was no evidence of circumstances or characteristics peculiar to the applicant as opposed to an ordinary person that gave rise to a need for the judge to give such a direction.  He suggested that the evidence did not support the contention that the applicant had suicidal tendencies.  Although his left wrist was injured from his earlier attempted suicide there was no evidence that he was permanently handicapped. 

22.In the alternative, Mr Lee submitted that, if the court was satisfied that the judge ought to have directed the jury in respect of the issue of the gravity of the provocation to the applicant and drawn their attention to the evidence relevant to that issue, the judge’s failure to do so was not material.

23.Finally, Mr Lee submitted that if the court was against his primary submissions this was an appropriate case in which the conviction could be properly sustained by application of the ‘proviso’.

A CONSIDERATION OF THE SUBMISSIONS

The law

24.There is no dispute that the second and objective question that arises in the consideration of the defence of provocation contains two elements.  The former element, is as to the gravity of the provocation to the applicant, whilst the latter element is the application of “an external standard of self-control”.  Of the overall approach to the issue of the defence of provocation, in Holley Lord Nicholls approved specifically of the summary given by Lord Hobhouse in Smith (Morgan) (see page 594G at paragraph 26).  There, Lord Hobhouse said (see page 205C-E) :

“… the constituents of provocation are as follows. 

(a)     The defendant must have been provoked (whether by things done or by things said or by both together) to lose his self-control and kill or do whatever other act is alleged to render him guilty of murder.

(b)     This is a factual question upon which all relevant evidence is admissible including any evidence which tends to support the conclusion that the defendant either may have or did not lose his self-control. 

(c)     If the jury conclude that the defendant may have been provoked to lose his self-control and do as he did, the jury should, as an exercise of judgment, but taking into account all the evidence, form a view as to the gravity of the provocation for the defendant in all the circumstances.

(d)     Finally, the jury should decide whether in their opinion, having regard to the actual provocation ((a) and (b) above) and their view as to its gravity ((c) above), a person having ordinary powers of self-control would have done what the defendant did.”

25.Of the objective standard, in respect of the ordinary person’s power of self-control, Lord Nicholls said (paragraph 18) :

“The jury should assess the gravity of the provocation to the defendant.  In that respect, as when considering the subjective ingredient of provocation (did the defendant lose self-control?), the jury must take the defendant as they find him, ‘warts and all’, as Lord Millett observed.  But having assessed the gravity of the provocation to the defendant, the standard of self-control by which his conduct is to be evaluated for the purpose of the defence of provocation is the external standard of a person having and exercising ordinary powers of self-control.  That is the standard the jury should apply when considering whether or not the provocation should be regarded as sufficient to bring about the defendant’s response to it: see Lord Millett at p.211.”

26.In his judgment in Smith (Morgan), Lord Millett had said (page 211D-E) :

“… the function of the ‘reasonable man’ is merely to provide an external standard by which the sufficiency of the provocation to bring about the defendant’s response to it can be judged.  That depends on a combination of two things: the gravity of the provocation and the requisite standard of self-control…

The first question the jury must consider is whether the accused was provoked by something, whether done or said, into losing his self-control and reacting as he did.  If he was, the next question is whether that something would or might have been sufficient to produce the like reaction in a person similarly placed but possessing the powers of self-control of an ordinary person.”

The summing up: provocation

27.Having directed the jury in respect of diminished responsibility, the judge set out the first of several directions in respect of provocation that were interspersed at different places of her summing up.  She said :

“At this stage, I will deal with provocation in general terms, leaving until later the evidence and submissions relating to provocation in the present case.

The issue of provocation only arises if you feel sure that the accused unlawfully killed the deceased with intent to kill her or to cause her really serious injury.  In other words, it only arises if you feel sure that subject to the issue of provocation, the accused is guilty of murder.  Remember that.

Where the doctrine of provocation operates it reduces what would otherwise be murder to the lesser offence of manslaughter.

On the issue of provocation, begin by asking yourself this question.  Was the killing the result of the accused having been provoked into losing his self-control?  If you feel sure that the accused had not been provoked into losing his self-control so as to kill the deceased in a state of loss of self-control, then the defence of provocation will not operate.

But if you think that the accused had been, or might have been, provoked into losing his self-control so as to kill the deceased in a state of loss of self-control, then ask yourself the next question, which is this.  Would an ordinary person of the same sex and the same sort of age as the accused have done what the accused did?

When I say ‘an ordinary person’, I mean a person who has ordinary powers of self-control.  If you think that an ordinary person of the accused’s sex and sort of age would have, or might have, done what the accused did, then you should find the accused not guilty of murder but guilty of manslaughter.

If, on the other hand, you feel sure that such a person would not have done what the accused did, then you would be entitled to find the accused guilty of murder as charged.”

28.The judge went on to say :

“Even if you think that the killing had been, or might have been, the result of the accused having been provoked into losing his self-control, you would still be entitled to find him guilty of murder if you feel sure that an ordinary person of his sex and sort of age would not have done what the accused did.

You will of course bear in mind the number of wounds inflicted, the weapons with which they were inflicted, and of course the cutting off of the deceased’s head.  Do you think that an ordinary man of the accused’s age might have done this?  Or are you sure that no ordinary man of that age, or indeed any age, would have done this?”

29.Next, in the sequence of her summing up the judge summarised the effect of the evidence of the witnesses called for the prosecution, together with a recitation of excerpts from what the applicant had said after the killing, in particular in his video recorded record of interview.  Of Dr Yuen’s evidence, she observed that it was his opinion that the applicant’s attempted suicide in June 2007 appeared to be :

“… an impulsive act and more related to personality weakness than mental illness.  He considered it possible that it was also manipulative, meant to get the deceased to go back to him.  The psychiatric diagnosis which the accused can be given is, Dr Yuen says, adjustment disorder with depressed mood.”

30.Then, the judge turned to a summary of the evidence of the applicant, in particular a description of his evidence of the conversation he testified that he had with the deceased at her home prior to the killing.  Finally, the judge returned to the issues of diminished responsibility and provocation :

“I have already given you general directions in regard to the law of diminished responsibility and the law of provocation.  Having heard the evidence and the speeches of counsel, you are aware that the accused relies on diminished responsibility and provocation.  When I say ‘rely’, I mean that the defence denies intent to kill or cause really serious injury, and further, contends as follows.

Even if you are sure that it was with intent to kill or cause really serious injury that the accused killed the deceased, you nevertheless should convict only of manslaughter, doing so by reason of provocation or by reason of diminished responsibility.  So that is what the defence relies on.

As for the accused’s reliance on provocation, he relies on his evidence of being provoked, and you will remember his evidence and counsel’s speech about that.  I have already referred to the accused’s evidence about the deceased words and actions and about his anger.  You will remember all of that.”

31.Finally, the judge invited the jury to consider the issues that arose in the trial in the following sequence: were they sure that the defendant had killed the deceased with intent to kill her or cause her really serious injury; if they were sure of that, they were invited to consider the issues arising first, of provocation and secondly, of diminished responsibility.

32.The judge concluded her directions in this respect by telling the jury that if they were sure that the applicant intended to kill the deceased or to cause her really serious injury :

“… then there is the question of provocation.  It is for the prosecution to make you feel sure that provocation does not operate.  Remember that provocation does not operate even if the accused himself was provoked into doing what he did if an ordinary man of his age would not have been provoked into doing what he did.

Approaching your task calmly, with commonsense and realism, do you think that an ordinary man of the accused’s age, or indeed any other age, would have been provoked into doing what he did?  Mark the word ‘ordinary’.  Mark the words ‘what he did’.  Remember what he did.”

33.Insofar as the judge did direct the jury’s attention to the evidence relevant for their consideration in respect of the issue of provocation, all she said was :

“… he relies on his evidence of being provoked, and you will remember his evidence and counsel’s speech about that.  I have already referred to the accused’s evidence about the deceased’s words and actions and about his anger.  You will remember all of that.”

34.Nowhere, in her summing-up did the judge direct the jury that, in addressing the second question relevant to the issue of provocation, namely whether an ordinary person of the same sex and age as the accused would have done as he did, they were to consider the issue of the gravity of the provocation to the applicant and to do so by having regard to all the evidence.

35.Relevant to resolution of that issue was the evidence not only of the applicant but also of Dr Yuen, whose opinion was that the applicant had a “personality weakness” and an “adjustment disorder with depressed mood “.  Similarly, relevant was the medical history obtained by Dr Yuen of the applicant, that he had been well before 16 February 2008 but that thereafter he had been emotionally disturbed, having difficulty sleeping and having become depressed.  The applicant’s evidence that he was jealous of the deceased’s relationship with other men and that he was of a possessive nature, together with his evidence of the circumstances of his two prior attempts at suicide, evidencing his inability to deal with challenges to his relationship with the deceased and rejection by her, were clearly matters that the judge ought to have brought into specific focus for the jury as evidence relevant to his characteristics and circumstances in respect of the issue of the gravity of the provocation to him.

36.The significance of the absence of the requisite direction in respect of the first element of the second question posed in respect of the issue of provocation was made the greater by the repeated emphasis on the second element of that question, namely the external standard of control being that of the “ordinary” person.

37.For the reasons set out above, with respect to the judge, I am satisfied that there was a material non-direction to the jury in respect of the issue of provocation.

The proviso

38.There is no dispute that the test for the application of the proviso is, as was re-iterated in the joint judgment of the Chief Justice, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ in Kissel v HKSAR FACC No.2 of 2009 (unreported 11 February 2010; page 63, paragraph 170), namely :

“Whether a hypothetical reasonable jury, properly instructed, would on the evidence without doubt convict or would inevitably come to the same conclusion.”

The submissions of the respondent

39.As noted earlier, counsel for the respondent invited the court to apply the proviso in the event that the court rejected his primary submissions.  He submitted that the evidence was overwhelming in respect of the applicant’s guilt of the offence of murder.  He pointed to :

(i)      the fact that the applicant had purchased the two knives used in the killing the night before the killing in support of the inference that the killing was pre-planned;

(ii)      the fearsome nature of the survival knife with its two edged blade, one of which was serrated;

(iii)     the fact that the deceased’s head was cut off and the evidence of the forensic pathologist that the severance had been done carefully and at a place where it could be achieved most easily;

(iv)     the fact that the applicant had worn a hand/wristband and the feeble excuse that he had given in testimony for so doing, namely that he liked it and wanted to wear it when he died;

(v)     the inherent improbability of the applicant’s account of events to Dr Yuen, in particular that the deceased had kept taunting him even though he was brandishing the survival knife, it having been his account in testimony that two days earlier she had fled and hidden in the female washroom of a KFC outlet because she was afraid of him; and

(vi)     that in the hour-long video record of interview, in which the applicant had described in detail the circumstances leading up to and the killing of the deceased, the applicant had not mentioned one word of any provocative or taunting words or conduct of the deceased at her home on the morning of 7 March 2008 prior to the killing.

40.Mr Lee drew to the attention of the court a number of authorities in which appellate courts had applied the proviso in cases of murder after having determined that the respective summing-up was flawed in a material respect (see R v Cox [1995] Crim LR 741; R v Dryden [1995] 4 All ER 987 and Lam Chi Kwong v HKSAR [2008] 11 HKCFAR 623).

The submissions on behalf of the applicant

41.Mr Loughran submitted that before this court could apply the proviso this court would have to be satisfied either that :

(1)     The applicant’s evidence that he had killed the deceased in circumstances where he had lost self-control was so incredible that the jury must have rejected it; or

(2)     that a jury would inevitably reject the applicant’s testimony when applying the external standard of control required of the second question posed in respect of the issue of provocation.

As to (1)

42.Mr Loughran pointed out that there was evidence that supported Dr Yuen’s opinion that the applicant’s attempts at suicide were “manipulative” and aimed at securing the affections of the deceased.  The applicant had referred in his video recorded record of interview to an earlier incident when his threat of committing suicide by jumping off a building that he had made in front of the deceased had resulted in her sending him repeated SMS messages.  It was the applicant’s evidence that he had purchased the survival knife so that he could display it to her in order to scare her to returning to him when he declared that he intended committing suicide if she did not return to him.  Mr Loughran submitted that the jury’s determination of the credibility of the applicant was crucial.  He contended that a resolution of that matter by an appellate court was fraught with difficulties (see the judgment of Mr Justice Bokhary PJ in Kissel at paragraph 263).

As to (2)

43.Whilst Mr Loughran accepted that the Court of Final Appeal had been prepared to apply the proviso in respect of a conviction for murder in Lam Chi Kwong, he drew attention to a passage in the judgment of Mr Justice Bokhary PJ illustrating the rigorous nature of the test appropriate to the application of the proviso in addressing the second question that arises in a direction to the jury in respect of provocation (page 635H-I, paragraph 33) :

“On the evidence, a reasonable and properly directed jury would in my view, inevitably have concluded that the prosecution had negatived provocation.”

The application of the proviso

44.In Dryden the appellant was convicted of murder and other offences arising out of his having shot the principal planning officer of the local authority and other persons who had accompanied him to enforce a demolition order of buildings that the appellant had built without permission on his own land.  There was a long-standing dispute over that issue between the appellant and the authorities, in which the appellant had threatened violence to officials, in particular that he would use guns.  The Court of Appeal of England and Wales determined that the judge’s summing up was flawed, in that he had failed to leave to the jury a consideration of relevant characteristics of the appellant, namely his obsessiveness and his eccentric character. 

45.The court went on to consider the nature of the evidence available to the jury in respect of the first question that arises in provocation, namely whether or not the appellant had lost his self control and determined that, “the evidence here was overwhelming that the appellant had announced his intention a considerable time before the event: that he had told people what he intended to do; that he prepared himself for the occasion.”  In consequence, that court concluded that on that occasion the appellant was not in a state where he had lost self-control.  The court went on to note that, even if that was not the case, it was satisfied that inevitably the jury would have rejected the claim that what the appellant had done, “… to go in, deliberately put on a holster, come out with a loaded gun and fire it to kill, was something which someone with the self-control of a reasonable man would have done.”

46.In Lam Chi Kwong the appellant was convicted of the murder of his girlfriend.  He testified that he had sought her out and, displaying a knife, threatened to stab himself to death unless she took him back.  He said that he had lost his self-control and stabbed her to death in face of her response to his question about the merits of her new boyfriend in which she disparaged the appellant’s qualities in contrast to those of her new boyfriend.

47.Mr Justice Bokhary PJ, with whose judgment the other judges agreed, concluded that the jury had been misdirected on how they should deliberate.  However, he went on to conclude that it was appropriate to apply the proviso.  Noting that the appellant had inflicted three stab wounds to the deceased’s torso of 3 cm, 7 cm and 9 cm in depth, he concluded that, “a reasonable and properly directed jury would, in my view, inevitably have concluded that the prosecution had proved at least intent to cause really serious injury.”  Of the issue of provocation, he said :

“On the appellant’s own testimony, what ultimately caused him to lose his self-control was the victim’s statement to the effect that he was useless, worthless and inferior in all respects to her new boyfriend.  The last question and answer in the appellant’s examination-in-chief were :

Q:      Would you have stabbed her if she didn’t say those words to you?

A:      Absolutely not.

Also on the appellant’s own testimony, the victim had said those words in response to his having asked her repeatedly what was so good about her new boyfriend.  There is nothing unnatural about a woman blurting out something of that sort when pressed like that.  Quite simply, I do not see how a reasonable jury could possibly feel otherwise than sure that no man possessed of ordinary self-control, whether of the appellant’s age or indeed any age, would have reacted to such a response by doing as the appellant did.  After all, the realism and common sense with which jurors are expected to approach their task must be attributed to the proviso’s reasonable hypothetical jury.  On the evidence, a reasonable and properly directed jury would, in my view, inevitably have concluded that the prosecution had negatived provocation.”

Did the applicant lose his self-control?

48.The evidence of the applicant’s loss of self-control is to be found only in his testimony at trial.  In his out-of-court statements, made respectively in reporting the incident by a ‘999’ telephone call, in response to being arrested and cautioned for murder at the scene of the killing and later at a police station in the video recorded record of interview the applicant made no mention of any provocative words and/or conduct by the deceased or of his having lost his self-control. 

49.The nub of the account given by the applicant in his video recorded record of interview is of having determined on 6 March 2008 to kill the deceased and having made arrangements to do so, which plan he put into operation the following day.  Of relevance to the immediate background to that plan, is his description of his attempts to meet the deceased following his discharge from hospital on 3 March 2008.  Eventually, on 5 March 2008 he confronted her outside her place of work to be told that she did not want to see him and that she wanted to make a “clean break with me”.  During the ensuing quarrel the deceased had hidden in the female washroom of a KFC outlet.  She did not reply to subsequent SMS messages that he sent her.  Of that he said,  “Then on the 6^th day of March I prepared to go to buy knives.”  He added, “Then prepared to on the following day-prepared to kill my girlfriend later on or on the following day.”  He agreed that he “chose” to kill her.  Further, he said that he “arranged” to kill her.  He did so by making enquiries as to when she was due to report for work, which information enabled him to calculate when she would leave home. 

50.On 7 March 2008, he lay in wait outside her home.  When she emerged she answered his question in the affirmative as to whether and not she really had another boyfriend.  He did not believe her, rather he thought it was an excuse to break up with him.  He began his attack on her by using the survival knife, which he held in his right hand, to chop the back of her neck.  When she fell to the floor he used the survival knife to stab her in the head.  He used the other knife to stab her in her heart.  He chopped and stabbed her as he did because “I wanted her dead”.  Then, he used the survival knife to cut off her head.  He did so, “to ensure that she was dead.”

51.He had worn the wristband purposely and as part of the arrangement he made.  He did so in order to, “Stabilise my own wrist so that I could chop at her harder.”

52.I am satisfied that there was overwhelming evidence that the applicant had killed the deceased in pursuance of a carefully planned arrangement to do so and that a properly directed reasonable jury would have inevitably concluded that to have been the case and that they would have rejected his evidence, contradicted as it was by his contemporaneous account, that he had lost his self-control.

Would a man of the same age as the applicant with the self-control of an ordinary man have done as the applicant did?

53.Even if the applicant had lost his self-control, there is no doubt that a properly directed reasonable jury would have inevitably concluded that a man of the same age as the applicant, or indeed any age, with the self-control of an ordinary man would not have done what the applicant did.  Echoing the words of Mr Justice Bokhary PJ in Lam Chi Kwong, and attributing to a hypothetical jury the appropriate qualities of realism and common sense, no reasonable jury could possibly feel otherwise than sure that no man possessed of ordinary self-control would have reacted to the alleged responses of the deceased by doing as the applicant did.

CONCLUSION

54.In the result, for the reasons set out above I would allow the application for leave to appeal against conviction, treat the hearing of the application as the hearing of the appeal and dismiss the appeal by applying the proviso.

Hon Tang VP :

55.For the reasons given above, the appeal is dismissed.

Mr Alex Lee, SADPP and Ms Peggy Lo, SPP of the Department of Justice, for the Respondent

Mr Paul Loughran, instructed by Messrs Tang & Lee, assigned by Director of Legal Aid, for the Applicant