HKSAR v. Ngan Lak Kwong

CACC 14/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 14 OF 2010

(ON APPEAL FROM HCCC NO 166 OF 2009)

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BETWEEN

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Before: Hon Stock VP, Yeung VP and Lunn JA in Court

Date of Hearing: 15 December 2010, 6 September 2011 and 16 March 2012

Date of Judgment: 15 August 2012

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J U D G M E N T

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Hon Yeung VP (giving the judgment of the Court):

Introduction

1.Tai Long Wan (Big Wave Bay) in Shek-O is a popular spot, not just for surfers and swimmers, but also for people to have barbecues at the park near the beach.

2.The access from the main road to the beach and the nearby village is a concrete path, and on one side of the path, there are stalls selling surfing equipments and other provisions.  Some of the stalls also provide barbecue facilities.

3.Surf 360 Store (“Surf 360”) is diagonally opposite to the park.  Further up the path from the park near a T-junction are Tong Kee Store (“Tong Kee”) and Ho Lok Store (“Ho Lok”).

4.On 13 September 2008, the Saturday eve of the Mid-Autumn Festival at shortly after 11 pm, there was a dispute in the lawn area outside “Surf 360” over the noise levels of music between two groups of people, one (“the 1^st group”) was having a barbecue at a barbecue pitch in the park and the other (“the 2^nd group”) was enjoying a barbecue and listening to music outside “Surf 360” near the fence that surrounds the park.

5.The catalyst of the dispute was Leung Tat-chun (“Leung”) of the 1^st group who, in a terrible state of drunkenness, having earlier consumed over 10 cans of beer and was on his way back to the park from a toilet, climbed up the fence outside “Surf 360”, and swore at and abused the 2^nd group, complaining about the noise levels of the music that they were playing.

6.Leung’s stupidity, as demonstrated in his unsavoury and offensive manner, led to an equally senseless response from the 2^nd group.  The two groups confronted each other outside “Surf 360” and there was a brawl that lasted only a short time and resulted in no serious injury to anyone.

7.The dispute, involving the use of triad languages, settled down and the 1^st group decided to leave while the 2^nd group also retreated.  However, there was a further commotion when a woman complained of being assaulted by someone in the 1^st group.

8.The deceased (Leung Chi-wing) of the 1^st group, taken to be the assailant, was chased up the path by people in the 2^nd group.  When intercepted near “Ho Lok”, the deceased was punched, kicked and made to sit on the ground.  The deceased was further attacked with a plastic chair, a glass honey-jar and a pair of scissors.

9.The result of the senseless dispute was fatal. In addition to bruises, abrasions and lacerations, which were consistent with the deceased being repeatedly punched, kicked and struck with a plastic chair and a glass honey-jar, he had a stab-wound that penetrated 3 to 4 centimetres through two vertebrae at the back of the neck, puncturing his spinal cord and killing him almost instantaneously. 

10.The tragic incident led to an indictment consisting of a charge of wounding with intent (“the 1^st charge”) against four defendants (David Chan, Wong Sze-ho, Nelson Chow and Ngan Sun-chi), and a charge of murder (“the 2^nd charge”) with the alternative 3^rd charge of wounding with intent against the applicant (Ngan Lak-kwong).

11.The five defendants pleaded not guilty to the charges and stood trial before Saw J sitting with a jury.

12.On 6 January 2010, David Chan and Nelson Chow were acquitted.  Wong Sze-ho and Ngan Sun-chi were convicted respectively of assault occasioning actual bodily harm and wounding with intent.  The applicant, represented by counsel, was convicted of murder.

13.The applicant sought leave to appeal against conviction and appeared before this court on 15 December 2010.  The application was adjourned for the applicant to obtain the service of a Senior Counsel.

14.Mr Gerard McCoy SC appeared for the applicant.

The Prosecution Case and Evidence

15.The applicant was present at the initial brawl between the two groups, but did not play an active role.  However he took a bundle of barbecue forks from “Tong Kee” to try to confront the 1^st group when the initial brawl had stopped.  After a woman complained of being assaulted, the applicant appeared again and took part in attacking the deceased with a pair of scissors.

16.The prosecution alleged that the applicant stabbed the deceased from behind to the back of his neck when he was sitting on the ground dazed and defenceless, having been chased and beaten by people in the 2^nd group.  The pair of scissors penetrated the deceased’s spinal cord and killed him.

17.Witnesses from the 1^st group said that the applicant and others, having chased and caught the deceased, kicked, punched and hit him with a plastic chair and a glass honey-jar.  They confirmed that the applicant was one of the attackers although they were unable to describe what exactly he did.  After the attack, the deceased lay on the ground and was bleeding from his neck.

18.People having barbecues near “Tong Kee” and/or “Ho Lok” also witnessed the attack on the deceased.  They said 15 to 20 minutes after the initial brawl had ended, a few people at “Surf 360” became agitated when a woman said, “It is he who harassed me”.  Then a group of men chased another group, including the deceased, up the path.  The deceased did not run fast enough and was caught near “Ho Lok”.  He was pushed onto the ground, punched, kicked and struck with a plastic chair.

19.The chair hit the deceased on his head, breaking to pieces and a glass honey jar, taken from a nearby barbecue party, was used to strike the deceased on his head.  Triad expressions were used and someone said, “Are you man?  You even hit woman!”

20.One witness heard someone say, “Fetch me a pair of scissors”.  She then saw a man, holding a pair of scissors, go towards the deceased.  The witness described the pair of scissors as one of those used for cutting cloth or food, with pointed and silver-colour blades.  Another witness suggested that there might well be more than one pair of scissors.

21.There were other witnesses who lived in the nearby village and were familiar with the applicant.

22.Ho Wai-kai’s family operated “Tong Kee”, but he ran his own stall, renting out kerosene lamps.  He witnessed the commotion and the fight between the two groups.  He said he saw the applicant walking up the path with a woman, talking on the phone and summoning help. 

23.Mr Ho also saw the applicant take some barbecue forks from “Tong Kee” and go towards the beach.  Later, the applicant entered “Tong Kee” again and emerged with a pair of scissors in his hand.  Mr Ho then saw the deceased trip and fall as he was being chased from the park, and he was then attacked by another group.  Mr Ho did not provide details of the attack.

24.Miss Li Ming-yee, another family member of “Tong Kee” said the applicant came out of “Tong Kee” with a bundle of barbecue forks and went towards the beach.  Miss Li said the applicant came out of “Tong Kee” again five or ten minutes later with several pairs of scissors in his hands and went towards the beach.  Miss Li said she heard someone say to the applicant, “Forget it, forget it, let it go”, but the applicant replied, “Shut up, Shek O boy”.

25.Miss Li said she then saw three men come up from the beach, chased by eight to ten men.  The three men, and one of them was bleeding, were then surrounded and assaulted by the other group with a chair, barbecue forks and a pair of scissors.

26.Miss Li was adamant that the applicant took barbecue forks and pairs of scissors from “Tong Kee” and that he was one of the attackers although she was unable to describe what the applicant actually did to the deceased during the attack.

27.CCTV images captured the applicant talking on the phone with barbecue forks in his hands and walking towards the direction of the park at 23:19:08 to 23:20:50 hours.  At 23:21:16 hours, the deceased walked past “Tong Kee” towards “Ho Lok”.  Between 23:21:40 and 23:21:45 hours, the applicant came out of “Tong Kee” with pointed and shiny objects in his left hand and walked hurriedly towards the park.  At 23:22:47 hours, the applicant walked hurriedly towards the direction of “Ho Lok”.  One minute and 20 seconds later, at 23:24:07 to 23:24:10 hours, the applicant walked hurriedly from “Ho Lok” towards the beach, and as he was walking, he turned his head to look back before disappearing into a lane next to “Tong Kee”.

28.The person who told the applicant to “forget it” was Yuen Wai-kin (“Yuen”) who, on seeing the applicant picking up barbecue forks and removing their protective covers on his way to the beach, said to him, “Please don’t, please don’t”.  However, the applicant pointed at Yuen with the barbecue forks, saying, “Shek O boy, it’s none of your business.  I’ll do you in as well.”

29.Ah Sai of the 2^nd group, who had played music loudly, said after the brief fight had stopped, he decided to take the ladies in his group away from the scene and he heard people in the 1^st group saying words to the effect that they would come back with reinforcement.

30.Ah Sai said he subsequently saw Wong Sze-ho and Ngan Sun-chi hit the deceased with a plastic chair and a glass honey jar.  He also saw someone picking up pieces of the broken chair to attack the deceased.

31.Ah Sai said when he was about to leave with Wong Sze-ho, the applicant arrived and he struck the deceased’s upper body with a silver-grey coloured, palm-sized object that he held in his hand.  Ah Sai confirmed that the applicant had consumed a lot of alcohol and that at the initial fight outside “Surf 360”, he had tried to mediate.

32.Medical evidence confirmed that the cause of death was the stab wound to the deceased’s neck and that the other injuries were not life-threatening.  The experts agreed that the amount of force required to cause the fatal wound was considerable and that the wound had been caused by a pair of scissors.

33.One pair of scissors, discarded by the applicant prior to the attack on the deceased, was recovered near the park.  The pair of scissors used to inflict the fatal wound on the deceased was not recovered.

The Evidence of Wong Sze-ho and Ngan Sun-chi

34.Wong Sze-ho and Ngan Sun-chi gave evidence in their defence.

35.Wong Sze-ho emphasized that it was the 1^st group, and in particular, Leung who had started the trouble, leading to the initial commotion.  Wong Sze-ho said when the dispute had settled down and when he was about to leave, more quarrelling occurred when a woman shouted, “Why are you guys putting up a fight here?” and then a response from a man, “Woman, so bloody what?  I will hit you to my heart’s content.  Even women will be beaten up.”

36.Wong Sze-ho suggested that the deceased had struck the woman on her head and then tried to run away.  He said when the woman pointed out that the deceased had hit her, he chased the deceased in order to apprehend and make him apologize for what he did.  He said he was followed by two others, who, having caught up with the deceased, started to attack him.

37.According to Wong Sze-ho, Ngan Sun-chi held the deceased in a headlock whilst another struck his head, possibly with something in his hand.  He said he only picked up a plastic chair and smashed it on the ground to prevent the deceased from escaping although he said he might have struck the deceased unintentionally.

38.Wong Sze-ho said he left when Ah Sai told him that his girlfriend was looking for him and at that time, there were still five to six people scuffling and the deceased was reduced to a sitting position.

39.Ngan Sun-chi, who is the applicant’s brother, said he was not with the 2^nd group, but heard the sound of a commotion after 11 pm from the direction of “Surf 360” and the vague voice of the applicant.  He then went to “Tong Kee” where he saw some people fighting.

40.Ngan Sun-chi said when he approached the fighting groups, he was attacked and there were exchanges of punches.  He denied using any weapon, let alone a glass honey jar to attack anyone.  He said he later left the scene and on the way, he discarded some of the clothes that he had been wearing.  Ngan Sun-chi said he did not see the applicant at all during the fight.

The Applicant’s Defence and Evidence

41.The applicant resided in Tai Long Wan village with his wife and two teenage daughters, and was the Secretary of its Residents Association.  The applicant said when he was very small, he noticed that “his father was nice to his mother during good times but at times when he was flying off the handle he might hit his mother”.

42.The applicant did not mention the aforesaid matter in his evidence in chief, but the judge allowed the evidence to be introduced after he had been cross-examined.

43.The applicant detailed what according to him had happened.  He said he finished work and returned to Tai Long Wan at about 3 pm on 13 September 2008, and he met up with his surfing friends, including Ah Sai, David Chan, Wong Sze-ho and Nelson Chow near “Surf 360”.  The applicant said the group chatted, drank and listened to music, and by 11 pm, he had consumed 12 to 13 bottles of beer.

44.The applicant described how Leung started the trouble, leading to the brawl.  The applicant said he tried to mediate, but was pushed away by Ah Shan and he left to seek help from others with a view to resolve the dispute.  He said he contacted his brother and Wan Wing-fai, but they were unable to assist.

45.The applicant said he went to “Tong Kee” to pick up an armful of barbecue forks, intending to stop the fight outside “Surf 360”.

46.The applicant admitted that he had an unfriendly exchange with Yuen, telling him, “Little boy, mind your own business” when Yuen tried to stop him.  The applicant said by the time he returned to the park, the fighting had stopped and he handed some of the barbecue forks to David Chan who just threw them away.

47.The applicant said there was still ongoing shouting and scolding between the two groups with the use of triad jargon, and he thought he should further mediate as he was worried that his friends might be assaulted.

48.The applicant admitted that he took two pairs of scissors from “Tong Kee”, intending to use them to stop the fight.  He said by brandishing something he might draw the attention of those who were fighting so that they would stop.

49.The applicant said he went to the park where he discarded one pair of scissors and by then, everyone had left.  He went back to the path and saw someone trying to restrain Ah Shan who was very agitated and was crying out, “The bastard hit me, he even hit a woman”.  The applicant said he was very angry when he learned that Ah Shan had been assaulted by a man.  He said it was wrong for a man to hit a woman.

50.The applicant said he heard the sound of fighting and saw David Chan and Nelson Chow having a dispute with someone sitting on the ground, and there were fragments of a broken chair.  The applicant said he assumed the man sitting on the ground was the man who had hit Ah Shan.

51.The applicant said he was angry and wanted to teach this man a lesson.  He said he went up intending to give the man a stab or a jab on the shoulder lightly with the pair of scissors that he was holding.  However, as he was bending over to stab or jab the deceased on his back, he suddenly blacked out because of the amount of alcohol he had consumed.  He then lost his balance and lurched forward. 

52.The applicant said he did not know if he had inflicted any stab wound, or any injury to the deceased, but he thought that he might have stabbed him on the shoulder.  The applicant was adamant that he only intended to direct the stab or jab at the deceased’s shoulder with light force and that he had no intention to cause serious harm to him.

53.He said after regaining his consciousness, he left the scene and threw the pair of scissors into a rubbish receptacle.

54.The applicant’s defence was that the fatal blow to the deceased was not inflicted by him and if it was, it was an accident.  He also suggested that he had been provoked.

55.Just before he finished his evidence, the applicant said he was not sure if he had harmed the deceased, but nevertheless he was really regretful and conscience-stricken.  He said he wanted to apologize to the deceased’s family.  He said, “I was too impulsive to have done that.  It has never been my intention to cause injury to him”.

56.Ah Shan, when giving evidence for the applicant, confirmed that it was Leung who started the trouble and that the applicant had tried to mediate.  She also confirmed that a man pointed a barbecue fork at her and tried to punch her, grazing her on the chin and saying, “Don’t think I won’t hit you because you are a woman” before he was pushed away by one of his friends who said words to the effect, “Have you lost your head, hitting a woman?”.

57.Wan Wing-fai confirmed that the applicant had called him in the evening on the 13 September 2008, seeking his assistance to mediate in the dispute.

The Judge’s Summing-Up

58.The judge, after pointing out the applicant’s defence, emphasized to the jury that before they could convict the applicant of murder, they must be sure that the deceased was injured by a stab with a pair of scissors and that it was the applicant who intentionally stabbed the deceased in the neck with the intention to kill or to cause really serious bodily harm to the deceased; and that if they were not sure, they must acquit the applicant.

59.The judge further reminded the jury that if the applicant had accidentally inflicted the stab-wound to the deceased, or that he did not intend to kill or cause grievous bodily harm to the deceased, the applicant was not guilty of murder.  The judge then directed the jury on the question of manslaughter by an unlawful and dangerous act.

60.The judge had extensively dealt with the question of provocation, both in law and on facts, in the following terms:

“Provocation has a special legal meaning…first, you must ask yourselves whether the defendant was provoked in the legal sense at all…a person is provoked if he is caused suddenly and temporarily to lose his self-control by things that have been said and/or done by Leung… or other persons rather than just by his own bad temper….if you conclude that the defendant was or might have been provoked in that sense…you must ask yourself this question: was or may that conduct such as would cause an ordinary and sober person of the defendant’s age and sex to do as he did?...

First of all, was the defendant provoked…? If he was not, that is the end of the matter. If he was or may be, you then have to ask yourself this: was that conduct or may the conduct which the defendant says provoked him, would that have caused an ordinary person, an ordinary sober person of the defendant’s age and sex, to do as he did? An ordinary person is simply a person who has the powers of self-control to be expected of an ordinary sober person who is of the defendant’s age and sex. What is to be expected of an ordinary person? The law expects people to exercise control over their emotions.

If, for example, a person has an unusually volatile, excitable or violent nature, or is intoxicated, he cannot rely on that as an excuse. So the ordinary person in this contest is a person who is not exceptionally excitable or given to violence but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today…Therefore, …when considering this question you must take into account everything which was done and/or said according to the effect which, in your opinion, it would have on that ordinary person…

…

In this case, it is said on behalf of (the applicant) that the provoking conduct which caused him to suddenly and temporarily lose his self-control and to kill the victim was both the acts of the victim in punching his friend or , if it was not him, the acts of one of the victim’s friends in punching the defendant’s friend. ..she is referred to as Ah Shan. You will recall that it was the victim or indeed one of the victim’s friends who said to her, ‘Don’t think I won’t hit you because you are a woman.’ This, in turn, after she had been struck, caused Ah Shan to say, ‘The bastard hit me. He even hit woman.’ Now, this, it is said, was brought to the attention of (the applicant) and he said, as a consequence, he became very, very angry, and it was as a direct consequence of these series of events, it is submitted on his behalf, that he lost his self-control to the extent that he was provoked, as I have defined it for you.

On behalf of (the applicant) it can be said that there are parts of his evidence which, if they are true or which if they even may be true, support the suggestion that the partial defence of provocation is a matter in this trial. You will remember that he had observed the fight on the lawn. He was concerned about his friends’ welfare. They were, he said, being assaulted. They were being beaten up. He attempted unsuccessfully to obtain assistance from other villagers to mediate, as he described it. Finally, he had armed himself initially with some barbecue forks but eventually two pairs of scissors. All of this was the lead up to him learning that his friend, a woman, Ah Shan, had been struck. A short time after this he heard the sounds of fighting coming from the direction of the Ho Lok Store. Seeing …, the victim, sitting in the roadway, he told you this, ‘My subconsciousness told me it’s the person on the ground who hit Ah Shan. I was angry, agitated, too much of him to have hit a woman. I wanted to teach him a lesson,’ and a little later he said this, ‘I went up to him intending to give him a stab on the shoulder.’ Further on in his evidence he said this, ‘I was angry. He even beat woman. Too much of him he should have to have beaten up a woman.’

Members of the jury, you will have to determine whether there was or may have been a sudden and temporary loss of self-control on the part of (the applicant). When you determine this, you must examine with care the whole of the circumstances as you find them from the evidence. This will include the fact that (the applicant) has said that whilst he had become very angry at the consequence of what he had heard, he decided to teach that person a lesson. Now, in that regard you may wish to consider whether what (the applicant) was doing was an act in retaliation for what he assumed the victim had done. If it was an act in retaliation you may well decide that the prosecution has negatived provocation, because provocation only applies in the case of a sudden and temporary loss of self-control such a crime as makes a person for the moment not the master of his own mind.

So a defendant who plans an attack in revenge for provocative conduct does not necessarily act under that provocation, as I have defined it, because in such circumstances he would not have suffered a temporary and sudden loss of self-control. However, in this case, members of the jury, remember this: the timeframe between what (the applicant) alleges was the provoking conduct and his acts was very short and it may be that you would conclude that it was so short, that there was such little time, that you may find that in the case of (the applicant), if he was provoked, that it was not an act of retaliation or revenge because the timeframe was so short. The time between when he became aware of what had happened to Ah Shan and the time in which he is alleged to have struck the victim in the neck with the pair of scissors was only, you will appreciate, a very short frame. It may be, in those circumstances, if you consider that he had been provoked, this was not a deliberate act in retaliation but in response to the provoking conduct.” (Italic emphasis added)

61.In relation to the apology tendered by the applicant, the judge said:

“You will appreciate, members of the jury, there appears to be a contradiction in that statement and the contradiction, I would venture to suggest, is this: if he had not stabbed the victim and caused his death and if he had not appreciated it, then the proposition that he was conscience-stricken and wished to apologize to the victim’s family appears to be in direct conflict with that.”

62.The judge had supplemented his oral summing-up with written directions to the jury, in six sheets of paper, with the initial three relating to the charge of murder.

63.On the purpose and function of the written directions, the judge said:

“Now, these sheets, members of the jury, are in addition to my oral summing-up to you. There have no higher priority. They are taken in conjunction with what I have said to you orally and I trust they will be saying precisely the same thing. These are to assist you to identify the critical components of the offence of murder.”

64.In Sheet No 1, the judge, on the charge of murder, identified three ingredients, namely (1) the act or acts which caused the death was intentional; (2) that the killing was unlawful; and (3) that the applicant intended to kill or cause grievous bodily harm.  The judge then directed the jury that if they were not sure of any one of those ingredients, the applicant was not guilty, but if they were sure of all the ingredients, the applicant was guilty of murder.

65.In Sheet No 2 on the issue of provocation, the judge stated the following:

“Provocation is some act or series of acts done and/or words spoken which causes in (the applicant) a sudden and temporary loss of self-control and which would cause a reasonable person to lose his or her self-control and to behave as (the applicant) did.

….

Firstly: Was their conduct, behaviour, things said or done…which may have provoked, that is caused, (the applicant) suddenly and temporarily to lose his self-control?

…

Secondly: May that conduct, behaviour, things said or done have been such as to cause a reasonable and sober person of (the applicant)’s age and sex to do as he did?” (Emphasis added)

66.Sheets Nos 3 and 4 related to the manslaughter charge.

67.In Sheet No 5, the judge, on the charge of assault occasioning actual bodily harm and in connection with issue of bodily harm, stated: “A defendants (defendant’s) assault open (upon) the victim must result in actual bodily harm to the victim.” (Emphasis added and the words in bracket represent the correct words that should be used)

68.Sheet No 6 concerned the charge of wounding with intent and in defining ingredient of “wound”, the judge said, “A wound is an injury whereby the continuity of the victims (victim’s) skin is broken (the three layers).”  (Emphasis added)

Grounds of Appeal

69.Mr McCoy argued the appeal on three matters, namely; (1) counsel’s conduct of the applicant’s case, (2) the judge’s written directions to the jury, and (3) the judge’s oral summing-up to the jury.

Counsel’s Conduct of the Applicant’s Case

70.Mr McCoy suggested that counsel was flagrantly incompetent as she had not properly raised the issue of provocation and had not sufficiently led evidence from the applicant relating to his special “characteristic” arising from his childhood experience in connection with his father’s assault on his mother despite the clear instruction to do so.  Mr McCoy emphasized that provocation had always been the defence that the applicant wished to put forward.

71.Mr McCoy suggested that the few questions asked of the applicant relating to his father’s assault of his mother were insufficient to demonstrate that the applicant had a characteristic of a particular and heightened sensitivity of revulsion to seeing any female being physically abused by a male.

72.Mr McCoy emphasized that the judge and the prosecuting counsel had both expressed surprise that provocation was being advanced and suggested that counsel’s conduct of the defence demonstrated a lack of knowledge, learning and insight as to the contemporary requirements of the defence of provocation.

The Judge’s Written Directions to the Jury

73.Mr McCoy accepted that the judge was entitled to distribute written directions to a jury during his summing-up, a practice approved by the High Court of Australia in Hargraves v the Queen [2011] HCA 44, but emphasized that such written directions must be accurate.

74.Mr McCoy referred to the judge’s written directions and the grammatical and/ or typographical mistakes contained therein.  He emphasized that the jury would have placed more reliance on the written directions and if they contained mistakes, the impact on the jury would be far greater than mistakes in oral directions.

75.In so far as Sheet No1 set out the ingredients of murder and that the applicant was guilty of murder if the jury were sure of all those ingredients, Mr McCoy suggested that the judge should have included the rider, namely “unless you conclude that this was or may have been a case of provocation”.

76.Mr McCoy referred to Sheet No 2 and suggested that the judge was wrong to say that provocation was only available if the provocative conduct “would cause a reasonable person to lose his self-control” when the correct test should be whether the provocative conduct could or may cause a reasonable person to lose his self-control.  Mr McCoy suggested that the judge had made similar mistakes in his oral summing-up.

77.In so far as the judge used the words “was their conduct” in Sheet No 2 and not “was there conduct” as in his oral direction, Mr McCoy argued that the judge’s erroneous use of the word “their” (because of its plurality nature) might have wrongly casted “a dual obligation” on the applicant to adduce evidence of provocative conduct, not just from the deceased, but also from another or others, including his own self-induced provocation.  Mr McCoy suggested that “their conduct” could mean “conduct of both the deceased and of the applicant or someone else”.  Mr McCoy emphasized that in his oral summing-up to the jury, the judge said:

“A person is provoked if he is caused suddenly and temporarily to lose his self-control by things that have been said and/or done by (the deceased) or other persons.”

78.Mr McCoy argued that the judge’s direction to the jury left open for the jury to conclude that the necessary provocative conduct should come from any other person, including the applicant when self-induced provocation was never an issue at trial and when the judge had not directed the jury on that issue.

79.Mr McCoy referred to other obvious mistakes in Sheets No 5 and 6, and pointed out that the judge and both counsel at trial had failed to spot them.

80.Mr McCoy suggested that the judge’s written directions to the jury had led to confusion, inconsistency and above all unfairness to the applicant.

The Judge’s Oral Summing-up to the Jury

81.Mr McCoy argued that a significant factor relevant to the issue of provocation was that the applicant grew up in a family where domestic violence against a female (his mother) was common and therefore the assault on Ah Shan could be “something in one’s background that a person might be sensitive about” and was capable of being relevant to the applicant’s special “characteristic” for the purpose of provocation.  Mr McCoy referred to the judgment of Lord Diplock in R v Camplin [1978] AC 705 at p 718E-G:

“The judge should state what the question is using the very terms of the section. He should then explain to them 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 whether he would react to the provocation as the accused did.”

82.Mr McCoy also referred to paragraph 33 of the judgment in Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354 where Chan PJ said:

“The second aspect of this defence (that is, was the provocation enough to make a reasonable man do as he did) was further explained by Lord Nicholls of Birkenhead when delivering the majority judgment (majority of 6 to 3) in A-G for Jersey v Holley. In para. 6 of his judgment, Lord Nicholls, adopting the comments made by Lord Hobhouse of Woodborough in a dissenting judgment in R v Smith [2001] 1 AC 146 at p.185F, said that there are two elements in this aspect: first, the assessment of the gravity of provocation; and second, the assessment of how a person with ordinary power of self-control would react to provocation of that gravity. The first element involves a consideration of everything both done and said as required by s.4 of the Ordinance, and the second element involves a consideration of the accused’s conduct and whether a person with ordinary power of self-control would have reacted in a similar way. The accused’ characteristics that a reasonable person, i.e. a person with ordinary self-control may be taken to share, are not such characteristics as are inconsistent with reasonableness. The accused’s characteristics that the person with ordinary self-control may be taken to share are those which a reasonable person may have, e.g. having some physical impediment or deformity or something in one’s background that a person might be sensitive about, such as illegitimacy. If the provocation was directed to that sort of thing, the reasonable person may be taken to have had such characteristics.”

83.Mr McCoy complained that the judge had not mentioned the applicant’s “characteristic” resulting from “the domestic violence” in his summing-up to the jury.

84.Mr McCoy also said that the judge had wrongly and unfairly summarized the applicant’s evidence in the following paragraph at p 121:

“The essence of what he told you in evidence-in-chief was to the effect that he had become very angry by what he had had heard had happened to Ah Shan. Whilst he was so angry, he intended to punish the person he assumed had struck her. He went intending to punish that person. He lent over intending to punish that person, he was going to stab him or jab him. However, the essence of his case was that before he could effect that, something happened and he does not know thereafter what occurred.”

85.Mr McCoy emphasized that the applicant only said “I wanted to teach him a lesson” and did not use the word “punish”.  In any event, Mr McCoy, relying on Van Den Hoek v The Queen (1986) 161 CLR 158 at p 168 and R v Chhay (1994) 72 A Crim R 1 at p 14, submitted that motivation of retaliation or revenge was not necessarily inconsistent with provocation.

86.Mr McCoy suggested that the judge should make clear to the jury that an important question in the case was whether the applicant subjectively still had lost his self-control at the time of the stabbing, as the jury could well have thought the applicant initially lost his self-control but might have or had regained it at the time of the stab with the pair of scissors.  Mr McCoy referred us to the judgment in Masciantonio v The Queen (1995) 183 CLR at 69-70:

“The associated question whether, in the sequence of events, an accused, having lost his self-control, had regained it so that the continued infliction of injury was in fact no longer provoked, is not a question to be answered by reference to the ordinary person. It is to be answered by reference to the conduct of the accused himself and to common experience of human affairs. It is the nature and extent – the kind and degree – of the reaction which could be caused in an ordinary person by the provocation which is significant, rather than the duration of the reaction or the precise physical form which that reaction might take. And in considering that matter, the question whether an ordinary person could form an intention to kill or do grievous bodily harm is of greater significance than the question whether an ordinary person could adopt the means adopted by the accused to carry out the intention.”

87.Lastly, Mr McCoy complained against the judge’s reference to and comments on the applicant’s apology, saying it was harsh and unfair, as the judge had overlooked the applicant’s contention that because of loss of self-control, he was not responsible for his actions as might otherwise appear.

The Respondent’s Position

88.Mr Kevin Zervos SC, on behalf of the respondent, argued that provocation was not available to the applicant and should not have been left to the jury at all.

89.Mr Zervos, relying on Zeng Liang Xin v HKSAR (1997-98) 1 HKCFAR 12, and Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354, suggested that there was insufficient evidence for the issue of provocation to be left to the jury.  Mr Zervos emphasized that there was no evidence to show that Ah Shan was closely connected to the applicant, and therefore he should not be particularly upset by the assault on her.  Mr Zervos also emphasized that the deceased did not say or do anything to provoke the applicant.

90.Mr Zervos suggested that the deceased had not provoked the applicant and that the applicant did not lose self-control.  Mr Zervos argued that the applicant was just angry and wanted to teach the deceased a lesson.

91.In his written submission, Mr Zervos detailed the applicant’s evidence and emphasized that the applicant stabbed the deceased on his neck when he was sitting on the ground, dazed and defenceless, after being beaten by others.

92.Mr Zervos disputed the suggestion of incompetency of counsel or unfair and erroneous summing-up.  He suggested that the use of “their” instead of “there” and other “mistakes” in the written directions were obvious mistake without any consequence.  He further argued that the summing-up and the written directions to the jury as a whole were fair and reasonable.

93.In any event, Mr Zervos argued that the evidence against the applicant was overwhelming and he submitted that the proviso under s 83(1) of the Criminal Procedure Ordinance should be applied even if the applicant were to succeed on any of the grounds.

Discussion

Was the Issue of Provocation Properly Left to the Jury

94.It is not difficult to understand why both the judge and the prosecuting counsel had expressed surprise that the defence of provocation was being run.  On the applicant’s evidence, provocation certainly could not have been a principal defence as suggested by Mr McCoy.

95.The applicant did not say that he attacked the deceased because he was provoked and that he had lost his self-control.  His evidence was that as he was angry at what he assumed the deceased did to Ah Shan and he wanted to teach him a lesson (which, in our view, was no different from wanting to punish him). 

96.The applicant said when he struck the fatal blow on the deceased, his only intention was to direct the pair of scissors at the shoulder of the deceased with a light force with no intention to inflict any serious injury to the deceased, but he lost his balance and blacked out, and did not know what happened afterwards.  On the applicant’s own evidence, it was difficult to run the provocation defence.

97.However, provocative conduct or words need not be confined to one discrete event, nor are they confined to conduct or words emanated from the victim. (See R v Davies (1974) 60 Cr App R 253)

98.The applicant was a village representative of Tai Long Wan, and on the day in question he became aware that Leung had verbally abused his friends at “Surf 360”, leading to a brawl in which triad jargon was used.  Leung and the deceased belonged to the 1^st group, an “outside group” that went to Tai Long Wan for fun.

99.There was suggestion that the 1^st group was seeking reinforcement and just when the dispute was brought to an end, the deceased or someone in the 1^st group assaulted or threatened to assault Ah Shan, and said words to the effect that even women would be beaten up.

100.If there was some evidence of a specific act or words of provocation resulting in a loss of self-control, the judge was bound to place before the jury all possible alternatives which were open to them on the evidence (see s 4 of the Homicide Ordinance Cap 339).  Lord Clyde in R v Von Starck [2000] 1 WLR 1270 emphasized at 1275:

“It is his responsibility not only to see that the trial is conducted with all due regard to the principle of fairness, but to place before the jury all the possible conclusions which may be open to them on the evidence which has been presented in the trial whether or not they have all been canvassed by either of the parties in their submissions. It is the duty of the judge to secure that the overall interests of justice are served in the resolution of the matter and that the jury is enabled to reach a sound conclusion on the facts in light of a complete understanding of the law applicable to them.”

101.The applicant was entitled to have the evidence pointing to provocation considered from the viewpoint that was most favourable to him.

102.In our view, even on the prosecution evidence, there was evidence capable of supporting the defence of provocation and the judge was right to have left the issue to the jury.

103.The evidential duty to raise the issue of provocation had been fulfilled and the prosecution had the duty to disprove provocation, even if Mr Zervos was right in saying that the provocation defence was weak and unclear.

The alleged incompetence of Counsel

104.In support of this ground of appeal, the applicant had filed an affirmation on 19 September 2011, saying that he had informed his lawyers, prior to the trial, that when he learned that Ah Shan was hit by a man, he became furious as he found it outrageous for someone to hit a woman.

105.The applicant further said that in his childhood, his father always vented his spleen at his mother by punching and kicking her.  He said his mother undertook such violence without complaint in order to preserve the harmony in the family.  He said he was scared on seeing the violence inflicted on his mother and he tried to stay away.

106.The applicant emphasized that his mother was a great mother and he loved and respected her.  He said when his father assaulted his mother, he felt extremely scared, and was in extreme agony and the impression had been deeply engraved on his mind.  He also said when he witnessed a woman being hit by a man in real life, he could not stop thinking of the scenes when his father hit his mother and the sufferings that he and his mother went through.  He said he would immediately become agitated and could not control himself.

107.The applicant suggested that when he learned that Ah Shan had been hit by a man, the scenes of his mother being assaulted by his father and his childhood suffering emerged and he immediately became agitated, furious and could not control himself.

108.The applicant’s brother Ngan Sun-chi said in his affirmation, that in the course of the applicant’s examination-in-chief by counsel, he was asked by counsel outside court why the applicant became so agitated when he learned that a woman had been hit and in response, he told counsel: “Probably he often saw my dad hitting my mom when he was a child…”.

109.Counsel, in her affirmation in reply, said that the applicant, despite the detailed instructions to her, had never mentioned that he had witnessed any assault on his mother and how it would affect him despite the repeated questions put to him about himself, his family and his physical condition, both physical and mental.

110.Counsel pointed out that the applicant only emphasized that he had consumed a lot of beer and was quite drunk and that he was angry and wanted to teach the deceased a lesson.  She said that the applicant only disclosed his father’s assault of his mother and its impact on him in his affirmation dated 15 September 2011.

111.Counsel said Ngan Sun-chi, in the course of the applicant’s cross-examination, told her that he was worried about the way the applicant gave evidence and mentioned that his father had hit his mother when the applicant was small.  Counsel said she informed Ngan Sun-chi’s counsel and invited a written statement from Ngan Sun-chi, but he did not provide any.

112.Counsel said she had attempted to ask the applicant questions in order to give him the opportunity to explain, hoping that he would connect his father’s assault on his mother to the “Ah Shan’ incident, however the applicant did not explain or elaborate and she did not think it was proper to suggest, prompt or ask leading questions of the applicant on the matter.

113.Counsel denied Ngan Sun-chi’s suggestion that she had said to him “I don’t know why your younger brother became so agitated when he learned that a woman had been it.” 

114.In her evidence before us, counsel detailed the many conferences that she had with the applicant and the attempts to obtain information from the applicant as to why, on seeing/hearing Ah Shan being assaulted, he was so agitated as to use a pair of scissors to attack the deceased.  The applicant simply repeated the suggestions that “it was too much to hit a woman”, “he had crossed the line”, “he was very angry and agitated”, “it was wrong for a man to hit a woman”, “he wanted to teach him a lesson” and so he tried to give the deceased a stab or a jab on his shoulder lightly with the pair of scissors.  Counsel was adamant that the applicant did not say what he revealed in the latest affirmation that on learning Ah Shan being hit, the scenes of his mother being assaulted by his father and his childhood suffering emerged such that he could not control himself.

115.Mr McCoy was prepared to accept counsel’s evidence to be true and that if there was any discrepancy between her evidence and the contents of Ngan Sun-chi’s statement counsel’s evidence was to be preferred.  Nevertheless, Mr McCoy argued that when Ngan Sun-chi informed her in the course of the applicant’s cross-examination, counsel should have taken further instruction from the applicant relating to his childhood experience so as to properly present the provocation defence and in so far as counsel had failed to do so, she was guilty of flagrant incompetence.  Mr McCoy emphasized that provocation was always the applicant’s principal defence.

116.We are prepared to accept that provocation was part of the applicant’s defence.  However, the question was: “What were the matters that the applicant wished to rely on in connection with his provocation defence?”

117.Clearly the provocation defence initially rested on the cumulative conduct of people in the 1^st group, particularly that of Leung who had created the initial trouble and that of the deceased who was said to have assaulted Ah Shan.  There was also the evidence that the applicant was a local village representative, who had tried to mediate and that in the course of the confrontation between the 1^st and the 2^nd group, there was the use of triad expression and the mention of reinforcement.  All those matters were properly put before the jury.

118.At trial, the applicant had given detailed evidence on what according to him happened on the day in question.  The applicant said he tried to mediate, summon others to resolve the dispute, pick up an armful of barbecue forks in order to stop the fight.  The applicant explained why he shouted at Yuen, saying that he was angry and agitated.

119.The applicant further said when the shouting and scolding between the 1^st and the 2^nd groups started again with the use of triad jargon, he further tried to mediate for fear that his friends might be assaulted.  He also explained why he had decided to take two pairs of scissors from “Tong Kee” and how he assumed that the deceased was the one who had hit Ah Shan.

120.The applicant explained his emotion when he approached the deceased with a view “to give him a stab or a jab on the shoulder with the pair of scissors”, and how he suddenly blacked out and did not know what had happened afterwards.

121.On the evidence of counsel, which we accept entirely, the applicant had been repeatedly asked to explain his emotions and what had crossed his mind during the stabbing.  Contrary to what he said in his affirmation, the applicant had made no mention of the scenes of his father hitting his mother coming to his mind.

122.In our view, if there was any truth in the applicant’s suggestion that his father’s assault on his mother had been so deeply engraved on his mind and that when he saw Ah Shan being hit, he could not stop thinking of the scenes and he immediately became agitated and could not control himself, he would not have failed to inform counsel in the many conferences they had and the numerous written instructions that he gave her.

123.Similarly, the applicant could not have failed to mention those matters in his evidence-in-chief. The applicant had been given every opportunity to say whatever he wanted to say in connection with the provocation defence and there was no suggestion at trial that there were other matters that he wanted to say, but was not given the opportunity to do so.

124.When counsel, after the applicant’s cross-examination was complete, informed the court of the “domestic violence” that she considered to be relevant to the provocation defence, she “made it clear for record purpose” that she was not told of it by the applicant and that it was only brought to her attention by a family member “after the court adjourned at half past 4 yesterday”.  There was no indication that the applicant disagreed   with counsel’s suggestion.

125.It must be remembered that at that stage of the proceedings, counsel was no longer entitled to advise or take instruction from the applicant freely.  Nevertheless, when the applicant was asked how his father treated his mother, the applicant gave the answer that he did.  The applicant did not say he could not control himself when he learned of Ah Shan being hit as the scenes of his mother being assaulted by his father emerged. 

126.Instead, the applicant elaborated by simply saying that “I was too small at that time to know the reason behind.  I don’t know why it’s like that”.  He further said on learning that Ah Shan had been assaulted by a stranger, he was very angry as it was wrong for a man to hit a woman.

127.The applicant was given the opportunity by counsel to say other things that he wanted to say and in response the applicant simply expressed his remorse and tendered his apologies to the family of the deceased.

128.The judge summarized the applicant’s further evidence fairly and correctly:

“Further matters which emerged in (counsel’s) re-examination of the witness was that his father was a traditional type, as he described him, a person who was quite nice at some times but, on occasions, would assault (his) mother. This was, he said, in the course of one of his temper tantrums. Having said that, he said the following – and I will paraphrase what he said – he said he was too young to know the reason why his father did this. As to his response to finding that Ah Shan had been struck, he said this made him very angry and again he repeated, in re-examination, it was wrong for a man to hit a woman.”

129.It is true that counsel could have sought leave from the judge to take further instructions from the applicant and that she did not.  But she explained her position to us. She was surprised when approached by Ngan Sun-chi who ought to have conveyed such concerns as he purported to have to his own counsel. This whole suggestion of attack upon the mother had not featured previously as having any relevance to the case and she was concerned that there was some attempt, perhaps, to derail the proceedings. She chose the course she did, of putting a further question or questions by way of reopening examination of her client and we cannot say in all the circumstances that the course she adopted was an incompetent one.

130.As far as concerns the criticism of the judge for not highlighting the applicant’s suggested sensibility born of what allegedly happened to his mother, there was in the event scant evidential basis for him to do so. On any view of the matter, the suggestion of such sensitivity, oblique as it was, came very late in the day and highlighting it might have served only to undermine the applicant’s credibility. It, in any event, for the reasons explained, took a wholly peripheral place in the proceedings and the judge cannot be criticised for dealing with it in the manner he did.

131.An allegation of flagrant incompetence of counsel is a very serious allegation, and to rely on such allegation as a ground of appeal, the appellant must demonstrate that the way the defence was conducted has led to an unfair trial.  We wish to repeat the following part of the judgment of Sir Thomas Eichelbaum NPJ in Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126 at p144G – 145B:

“More often, however, assertions of ‘incompetence’ will relate to the manner in which counsel dealt with a specific issue during trial, involving a matter of judgment or decision, or advice given to the defendant. The expression ‘flagrant incompetence’ rightly underlines an appellant’s need to show much more than a mistake, an error of judgment, or a decision to follow one course when in hindsight another would have been preferable. But it should not deflect attention from the most critical point, namely given that there was a significant error of some kind, what will be decisive is the effect of the error on the trial. As Lord Steyn said, in delivering the judgment of the Privy Council in Boodram v Trinidad and Tobago [2002] 1 Cr App R 103;

…the general principle requires the court to focus on the impact of the faulty conduct. (at p.118)

The bottom line is that to succeed, an appellant must be able to show he or she received less than a fair trial. As the Appeal Committee said in Mak Kam Chuen v HKSAR (unreported FAMC No 35 of 2001, [2002] HKLRD (Yrbk) 276, [2001] HKEC 1521):

…the ultimate question for the court is whether the conduct complained of has result in the accused not getting a fair trial so that the conviction is unsafe or there is a miscarriage of justice. (at p.4)”

The Judge’s written directions to the jury (Sheet No 1)

132.Sheet No 1 was meant to set out the essential ingredients of murder.  It was never intended to cover other matters which would reduce murder to manslaughter.  Indeed as pointed out by Mr Zervos, the judge in his oral direction to the jury went through Sheet No 1 and then added:

“If you are sure of all of those ingredients then the (applicant) is guilty of murder subject to the following…unless you conclude that this was or may have been a case of provocation…If you are sure of all of those ingredients, then the (applicant) is guilty of murder unless he was or may have been provoked into killing the victim in which case he is guilty of manslaughter”

133.Having reminded the jury that provocation reduced murder to manslaughter and before introducing Sheet No 2 to the jury, the judge said at p 138:

“As I have said to you in my oral address, if all of those ingredients are found proved, the defendant is guilty of murder, but you do not find him guilty of murder unless and until you are satisfied that the prosecution has disproved provocation.”

134.The judge then dealt with Sheet No 2 and again gave detailed directions to the jury on the issue of provocation.

135.The entire summing-up by the judge, both the written and the oral directions, must be considered together and the judge had reminded the jury so.  There can be no doubt, on the entirety of the summing-up, that the jury would not have convicted the applicant of murder if they were not satisfied that the provocation defence had been disproved by the prosecution.

136.Mr McCoy’s complaint about Sheet No 1 has no substance.

The use of “would” instead of “could” or “might” in Sheet No 2

137.Section 4 of the Homicide Ordinance Cap 339 set out the defence of provocation in the following terms:

“Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.” (Emphasis added)

138.It requires the jury to consider how a reasonable person would respond to the provocation offered. The answer may be one of the following three, namely (1) a reasonable person would not respond as the accused did; (2) a reasonable person would respond as the accused did; or (3) a reasonable person may respond as the accused did. If it is the 2^nd or 3^rd answer, then the prosecution has not negated provocation. Although a jury must ask themselves how a reasonable person would respond, the ultimate question for determination is whether on the facts found in the case, the act or series of acts done and/or words spoken which caused in the accused a sudden and temporary loss of self-control would or may cause a reasonable person to lose his or her self-control and to behave as the accused did, and that was the overall effect of the judge’s directions. It was made clear to the jury that the defence of provocation was made out (in the sense that it was not disproved by the prosecution) if the jury thought that the alleged provocative conduct may have caused an ordinary and reasonable person to do as the applicant did; for having defined “provocation”, the judge further stated in Sheet No 2:

“How then do you determine whether (the applicant) was or may have been provoked to do as he did? There are two questions that you have to consider before you are entitled to conclude that (the applicant) was or may have been provoked on this occasion.

Firstly: Was their (there) conduct, behaviour, things said or done on 13 September 2008, which may have provoked, that is caused, (the applicant) suddenly and temporarily to lose his self-control?

If your are sure that the answer to that question is ‘NO’, then the prosecution will have disapproved provocation and provided that the prosecution has made you sure of the ingredients of the offence of murder to which I have referred, your verdict will be Guilty to murder.

If, however, your answer to that question is ‘YES’, you must go on to consider the second question, which is:

Secondly: May that conduct, behaviour, things said or done have been such as to cause  a reasonable and sober person of (the applicant’s) age and sex to do as he did?”

139.The judge supplemented Sheet No 2 by his oral direction in the following terms:

“But if you conclude that (the applicant) was or might have been provoked in that sense that I have explained to you, you must ask yourself this question: was or may that conduct such as would cause an ordinary and sober person of (the applicant’s age and sex to do what he did?

There is a second component to the nature of the defence of provocation. First of all, was (the applicant) provoked, as I have described it? It he was not, that is the end of the matter. If he was or may be, you then have to ask yourself this: was that conduct or may the conduct which (the applicant) says provoked him, would that have caused an ordinary person, an ordinary and sober person of (the applicant’s) age and sex, to do as did?”

140.In Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354, Chan PJ said at p 367:

“Thus, if the jury are sure that the accused was not provoked to lose his self-control, that is the end of the defence. If however they accept that the accused was or might have been provoked, they then have to consider whether a person having the power of self-control to be expected of an ordinary person (of the same age and sex as the accused) would have lost his self-control and reacted in the way as the accused did. If they consider that such a person would or might have behaved as the accused, the defence of provocation is made out. If they are sure that such a person would not have reacted in a similar way, the defence fails.”

141.Similar observation was made by Lord Diplock in Camplin (supra) at p 718:

“…the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but also whether he would react to the provocation as the accused did.”

142.We have considered the judge’s written direction in Sheet 2 and his oral direction to the jury carefully.  We are satisfied that the judge had made clear that the defence of provocation was made out if the jury thought that the alleged provocative conduct may have caused an ordinary and reasonable person to do as the applicant did. We are satisfied that the judges’ overall direction to the jury, properly understood, had correctly set out the legal position and were in line with Ho Hoi Shing (supra).  Mr McCoy’s complaint was not justified. 

The use of “their” instead of “there” in Sheet No 2

143.A judge, of course, must try to ensure that directions to the jury, whether oral or written, contain no mistake.  It is unfortunate that the written directions to the jury do contain grammatical and typographical errors.  The use of “their” in Sheet No 2 is one of such errors. There are also errors in Sheets No 5 and 6 as identified by Mr McCoy.

144.Mr McCoy accepted that the judge, in his oral summing-up, correctly used “there” instead of “their”.  Reading Sheet No 2 together with the oral summing-up, it is clear that when the judge referred to “things said and/or done”, which could constitute provocation, the judge was referring to “things said and/or done” by the deceased or other persons.

145.Mr McCoy suggested that the word “their”, because of its plurality nature, would cast a duty on the applicant to adduce evidence of his own self-induced provocation and also of provocative conduct by the deceased or another or other persons, which Mr McCoy classified as a “dual obligation”.

146.Self-induced provocation was never an issue before the jury and in the context of the case, when the judge referred to “things said and/or done by (the deceased) or other persons”, he could only be referring to other persons in the 1^st group.  It is unrealistic to suggest that what the judge said would cast a duty on the applicant to adduce evidence of his own self-induced provocation.

147.In any event, on the issue of “provocation”, a defendant does not have an obligation to adduce evidence to prove anything.

148.It is well established that once the issue of provocation is raised and there is some evidence to support it, it is for the prosecution to prove that the defendant was not provoked, or if he were provoked he did not lose his self-control.  Briggs CJ in R v Chan Ka-shing [1975] HKLR 323 said so at p. 325:

“…Counsel for the appellant drew our attention to two cases, Prince 28 Cr App R 60, and McPherson (1957) 41 Cr App R 213. The head note 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.’”

149.The judge, in his summing-up, repeatedly reminded the jury that the prosecution had the burden to disprove the defence case, including the defence of provocation, once it was raised.

150.In our view, even if the erroneous word “their” used by the judge in Sheet No 2 could have the effect of “plurality” as suggested by Mr McCoy, it could not have led to any unfairness or injustice to the applicant.

151.In our view, the judge, in the oral summing-up to the jury, had given clear and detailed directions to the jury on the nature and source of the possible provocative conduct, namely things that had been said and/or done by the deceased or other persons rather than just by the applicant’s own bad temper.

152.Sheets No 5 and 6 related only to the alternative charges of assault occasioning actual bodily harm and wounding with intent.  They were simply not relevant to the murder charge against the applicant. We do not, therefore, find it necessary to examine the “mistakes” identified by Mr McCoy except to point out that those “mistakes” have no bearing on the issues that we have to decide.  The “mistakes” identified by Mr McCoy could not have led to an unfair trial.

The applicant’s apology

153.The applicant’s primary defence was that he did not inflict the fatal wound on the deceased and if he did, it was an accident as he blacked out just when he was about to stab or jab the deceased on his shoulder lightly.

154.To the extent that it was clear that the applicant had taken part in the attack on the deceased, which led to his death, the applicant’s apology to the deceased’s family and his claim that he was conscience-stricken was not inconsistent with his general defence. 

155.However, the judge did not direct his comment at the general defence of the applicant of lack of intent or of provocation, but rather only at the two statements that he made in the course of his re-examination.  The judge quoted the following remarks of the applicant:

“…(Counsel) asked him if there was anything that he would like to say...to you generally and to the public generally, and he said this:

‘In this incident, I cannot really say I was the person who caused harm to the victim.  I was really regretful and conscience-stricken.  I want to apologise to his family.  I dare not cherish the thought they might forgive me; it is just impossible.  I did something so foolish, on impulse.’ ”

156.The judge then immediately made the comments that Mr McCoy objected to, namely:

“You will appreciate, members of the jury, there appears to be a contradiction in that statement and the contradiction, I would venture to suggest, is this: if he had not stabbed the victim and caused his death and if he had not appreciated it, then the proposition that he was conscience-stricken and wished to apologise to the victim’s family appears to be in direct conflict with that.”

157.What the judge said simply was that if the applicant did not stab or cause him harm to the deceased as he had claimed, there was no need for him to be regretful and conscience-stricken, which, in the circumstances of the case, was not equivocal or unfair, but logically correct, as accepted by Mr McCoy.

158.In any event, we do not find this aspect of the case of any significance.  It was a just a passing comment on what could be described as an “undisputed matter”.

The alleged non-direction on whether the applicant subjectively still had lost of his self-control

159.When the judge directed the jury on the question of provocation, he had made it clear that the relevant time to consider if the applicant had lost his self-control was the time when he inflicted the fatal stab on the deceased.

160.The provocation defence at trial was premised on what had been said and done in the entire evening on 13 September 2008 up to the moment when the applicant struck the fatal blow on the deceased.

161.When the judge directed the jury on provocation, there was no need to specifically direct them on the issue of whether the applicant had regained self-control by the time he stabbed the deceased with the pair of scissors from any initial loss of self-control in accordance with the Australian decision in Masciantonio (supra) as that issue did not arise at all.

162.In Masciantonio (supra), the deceased provoked the accused, his father-in-law, when the accused complained about his violence towards the accused’s daughter (the deceased’s wife).  The deceased told the accused to “piss off”, attempted to kick him, and pushed him causing the accused to injure his arm.  The accused then got a knife from his car and a struggle ensued on the driver’s side of the car in the course of which the deceased was stabbed.  The deceased then broke away and went to the other side of the car where he collapsed on the footpath.  The accused followed him there and stabbed him again and the deceased died from a stab wound to the heart.  The judge left the question of provocation to the jury in relation to the earlier struggle but not in relation to the incident on the footpath.

163.The Australian High Court, by a majority decision, took the view that the judge should not have withdrawn from the jury’s consideration the issue of provocation at the second stage of events since the accused’s loss of self-control may have continued to that stage.  At page 68 of the judgment, Brennan J, Deane J, Dawson J and Gaudron J said:

“Nor, in our view, is it possible to draw a distinction in this regard between the two stages of events, the one when the deceased was beside the Fiat motor car and the other when he was lying on the footpath. Indeed, the continuation of the attack by the appellant whilst the deceased was on the footpath, despite the attempted intervention of bystanders, would point to a continuing loss of self-control. Moreover, the whole altercation occurred within a short space of time such that a jury might conclude that there was insufficient time for the appellant to regain his composure and that he acted from loss of self-control at both stage of events.”

164.In the present case, the judge was directing the jury on the basis that the whole altercation between the 1^st and the 2^nd group occurred within a short period of time and every act done or word said during the entire period would be relevant if they were of a provocative nature.

165.We fail to see how the decision in Masciantonio (supra) could have any relevance.  In fact, the judge’s direction to the jury that “if (the applicant) was provoked, (the subsequent attack on the deceased) was not an act of retaliation or revenge because the timeframe was so short” was favourable to the applicant and in line with Masciantonio (supra).  Such a direction cannot be the subject matter of a valid complaint.

Other complaints on the Judge’s oral summing-up

166.In so far as it has been suggested that the case relating to the loss of self-control was not adequately covered, it is to be remembered that in his evidence, the applicant did not say that he was not responsible for the action because of loss of self-control.  He said he did not know if he had stabbed the deceased’s neck, but if he did, he did not intend it.  He saidwhen he was about to give the deceased a light stab or a jab on his shoulder with the pair of scissors, he suddenly blacked out and did not know what had happened afterward.

167.As pointed out by Mr Zervos, even if the applicant had lost self-control, he should know if he had caused harm to the deceased.  On the applicant’s evidence, he did not attack the deceased because he lost his self-control.

168.The judge was entitled to refer to the applicant’s evidence that he did not know if he had caused harm to the deceased.  That certainly was an aspect going to the applicant’s credibility.

169.None of the witnesses who saw the attack on the deceased suggested that any of the attackers blacked out at any stage of the attack.  They saw the applicant approach the deceased with a pair of scissors. One witness saw the applicant strike the deceased’s upper body with what must be a pair of scissors.  The only person lying on the ground after the attack was the deceased.  In our view, the applicant’s suggestion that he suddenly blacked out when he was about to stab or jab the deceased’s shoulder was farcical.

170.Nevertheless, the judge had fairly placed the issue of provocation before the jury for their consideration and determination.  There was no valid basis for the suggestion that the judge’s approach was unfair.

171.Mr McCoy emphasized that motivation of retaliation or revenge was not necessarily inconsistent with the defence of provocation.  He suggested that when the judge directed the jury at p. 37 that “…in that regard you may wish to consider whether what the defendant was doing was an act in retaliation for what he assumed the victim had done.  If it was an act in retaliation you may well decide that the prosecution has negative provocation, because provocation only applies in the case of a sudden and temporary loss of self-control…”, there was a risk that the jury might be misled into thinking that provocation would not be available to the applicant as a defence if he acted in retaliation or revenge.

172.It is important to bear in mind that at the beginning of the paragraph objected to by Mr McCoy, the judge was dealing with the question of “whether there was or may have been a sudden and temporary loss of self-control on the part of (the applicant)”.  If it was a planned retaliation, there was no question of “a sudden and temporary loss of   self-control”.  The judge was right in saying in such a circumstance the prosecution would have negated provocation.

173.The judge did not exclude provocation because of the element of revenge.  The judge asked the jury to bear in mind the applicant’s own evidence that he had become very angry at what he heard and had decided to teach the deceased a lesson.  If that was what the applicant intended to do and when he attacked the deceased, there was no sudden and temporary loss of self-control, the prosecution would have negated provocation.

174.The judge further added that “a defendant who plans an attack in revenge for provocative conduct does not necessarily act under that provocation, as I have defined it, because in such circumstances he would not have suffered a temporary and sudden loss of self-control.” (Emphasis added)

175.The judge asked the jury to examine with care the whole of the circumstances and he had fairly emphasized to the jury that the time between when the applicant became aware of what had happened to Ah Shan and the time in which he struck the deceased in the neck was a very short one and therefore if the jury were satisfied that the applicant had been provoked, the attack on the deceased was not a deliberate act in retaliation but in response to the provoking conduct.

176.In our view, the judge’s approach was a proper one.  The suggestion that the judge had not adequately or sufficiently directed the jury on the issue of provocation has not been made out.

177.We have considered the judge’s entire summing-up to the jury including those relating to the defence of provocation.  We are not persuaded that any of Mr McCoy’s complaints up is justified. 

178.In our view, the applicant was properly and fairly convicted and we do not find the conviction against him in any way unsafe or unsatisfactory.  We grant the applicant leave to appeal against conviction, treat the hearing of the application as the appeal, but dismiss the appeal.

Mr Robert SK Lee SC, DDPP and Ms Noelle Aileen Chit, PP of the Department of Justice, for the respondent (on 15 December 2010)

Mr Kelvin P Zervos SC, DPP and Ms Lo Shui Ying Sabra, PP of the Department of Justice, for the respondent (on 6 September 2011 and 16 March 2012)

Ms Munira Moosdeen instructed by Lam and Lai assigned by the Director of Legal Aid for the applicant (on 15 December 2010)

Mr Gerard McCoy SC, instructed by Lam and Lai assigned by the Director of Legal Aid, for the applicant (on 6 September 2010 and 16 March 2012)

Please refer to FAMC56/2012 for the relevant appeal(s) to the Court of Final Appeal.