HKSAR v. Ngan Lak Kwong
Read the full judgment text of CACC 14/2010 on BabelCite. This Court of Appeal judgment was delivered on 26 October 2012 before Stock VP, Yeung VP, Lunn JA.
Criminal law – murder – provocation – jury direction – whether misdirection in law – application for certification of question of law of great and general importance – two applicants convicted of murder whose applications for leave to appeal against conviction had been dismissed – common issue whether trial judge misdirected jury by directing that jury 'must take into account everything which was done according to the effect which, in your opinion, it would have on that ordinary person' when considering provocation – whether two limbs of direction inconsistent – whether second limb asks jury to consider what impact provocative conduct would have on ordinary person rather than what impact it would or may have – Court of Appeal declines certificate – question posed non-contextual and does not address overall impact of directions and ultimate question for jury – section 4 of Homicide Ordinance requires jury to consider how reasonable person would respond to provocation – three possible answers: reasonable person would not respond as accused did; would respond as accused did; or may respond as accused did – ultimate question whether conduct would or may cause reasonable person to lose self-control and behave as accused did – impugned direction not problematic in its true context – reference to Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354 – certificate declined in both CACC 14/2010 and CACC 405/2011.
Legal issues: Certification of question of law of great and general importance on provocation direction
Outcome: Certificate of question of law of great and general importance declined in both cases.
Cites 3 cases
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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) ________________________ BETWEEN
________________________ and CACC 405/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 405 OF 2011 (ON APPEAL FROM HCCC NO. 69 OF 2011) ________________________ BETWEEN
________________________ Before: Hon Stock VP, Yeung VP and Lunn JA in Court Date of Hearing: 26 October 2012 Date of Judgment: 26 October 2012 ________________________ J U D G M E N T ________________________ Hon Stock VP (giving the judgment of the Court): 1.On 15 August 2012 and 20 September 2012 respectively this Court albeit differently constituted to each case dismissed the applications for leave to appeal against conviction for murder in Ngan Lak kwong and Tam Ho Nam. One common issue in both cases was whether the judge was wrong to have put to the jury the direction “… you must take into account everything which was done according to the effect which, in your opinion, it would have on that ordinary person”. The Court held that placed in proper context the direction was not a misdirection. 2.Each applicant through Mr McCoy SC now asks this Court to certify the following as a question of law of great and general importance:
3.Mr McCoy suggests that the two limbs are inconsistent one with the other and that the second limb is a misdirection in that it asks the jury to consider what impact provocative conduct in a case would have on an ordinary person rather than what impact it would or may have. 4.The question posed for certification is, we suggest, somewhat non-contextual for it does not address the overall impact of the directions and the ultimate question which the jury is asked to consider. The standard direction poses to the jury the key question: “Was or may that conduct have been such as to cause an ordinary and sober person of the defendant’s age and sex to do as he did”? And concludes by telling the jury that “if … your answer is that what was done and/or said would or might have caused an ordinary, sober person of the defendant’s age and sex to do as he did, your verdict will be Not guilty of murder but guilty of manslaughter by reason of provocation.” (Emphasis added) 5.Further, we do not, with respect, agree that, if read in full, there is the suggested inconsistency or that the directions give rise to the danger that Mr McCoy suggests. We explained the intended effect of the full directions and the place within them of the impugned direction at para 138 of our judgment in Ngan Lak-kwong:
6.Looked at out of context, the impugned direction (“take into account … according to the effect it would have on that ordinary person”) may be said to be problematic but not in its true context. This reasoning, wherefor we decline the certificate requested, does not address whether the point has already been decided by the Court of Final Appeal in Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354 at 367 or whether that Court’s comments were, as Mr McCoy suggests, obiter because the question was not, he informed us, then in argument. 7.For the reasons we have given, we decline to grant the certificate requested.
Mr Kevin P. Zervos & Ms Sabra SY Lo of Department of Justice for the Respondent Mr Gerard McCoy, SC, instructed by Lam & Lai, assigned by DLA, for the Applicant (in CACC 14/2010) Mr Gerard McCoy, SC, instructed by C. Yu & Co., assigned by DLA, for the Applicant (in CACC 405/2011) |
Cases cited in this judgment
Further hearings and rulings under CACC 14/2010