HKSAR v. Mok Kwok Wai Ericis

CACC 102/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 102 OF 2013

(ON APPEAL FROM HCCC NO 194 OF 2012)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Yeung Acting CJHC (giving the Reasons for Judgment of the Court):

Introduction

1.The deceased (Kam Hiu‑yung) became mentally retarded after suffering a head injury when she was about three.  She was slow in motion and speech, but in 2009 was able to find a cleaning job with a bus company.

2.On 9 September 2011, the deceased, at the age of 35, died of multiple injuries.  The applicant (Mok Kwok‑wai Ericis), the deceased’s co‑worker, was charged with murdering her.  The applicant admitted killing the deceased but claimed that he had been provoked and, on that basis in arraignment, he rendered a plea of guilty to manslaughter.

3.The prosecution did not accept the plea and the applicant stood trial before Deputy High Court Judge Stuart‑Moore sitting with a jury.  On 8 March 2013, the applicant was convicted of murder and sentenced to life imprisonment.

4.Represented by Mr R Donald, who did not appear for the applicant at trial, the applicant sought leave to appeal against conviction.  Acting in person, the applicant also sought leave to appeal against sentence.  At the end of the hearing, we dismissed both applications without calling upon the respondent. These are the reasons for our decisions.

The Facts

5.In January 2011, the deceased met the applicant and in or about July 2011, she went to live at Room 1125, Block B, Mei Tao House, Mei Lam Estate in Shatin (the premises) where the applicant lived with his mother.  There was the suggestion that the applicant assisted the deceased financially when she was unable to clear her debts and that their relationship was not sexually motivated.

6.According to her supervisor at work (Mr Lau), the deceased used to be a responsible worker, but after she moved into the premises in July 2011, things turned for the worse when the deceased would work for three days and then take one day off.  There were clear signs that she had been physically assaulted.

7.The deceased’s brother and Mr Lau noticed in July and August 2011 that the deceased had redness on one side of her face near her eye, but she claimed that she hurt herself in a fall.  Mr Lau saw the deceased on 16 August 2011 and found a bluish-blackish injury on the other side of her face near the eye and again the deceased said that she had had a fall.  Mr Lau said it was a much more serious injury as the deceased was wearing a mask and was unable to open her eye.  Mr Lau suggested that the deceased should see a doctor, and she never returned to work after that.

8.On 17 August 2011, the deceased accompanied by the applicant and his mother, consulted Dr Yuen.  Dr Yuen found a laceration to the head and an injury to the cheekbone and referred the deceased to the hospital for stitching.

9.Dr Chu at the Prince of Wales Hospital found multiple bruises on the deceased’s two forearms and there were nasal bruises and bruises around the left eye.  There was also scalp injury that required suturing and stitching.  The explanation given for the deceased’s injuries was that she had fallen on a staircase in an MTR station.

10.Dr Chu referred the deceased to the plastic surgery and reconstruction department, but it was not followed up.

11.On 23 August 2011, the deceased consulted Dr Yuen again accompanied by the applicant’s mother.  Dr Yuen found that stitches to the deceased’s head and the swelling on her face were much worse with signs of inflammation.  Dr Yuen estimated that there was another bump.  Dr Yuen’s nurse said she noticed the swelling on the deceased’s cheekbone on 17 August 2011, but found her injury on 23 August 2011 more serious and the colour of the swelling on the face was deeper and darker.

12.The deceased, accompanied by the applicant’s mother, consulted Dr Yuen again on 3 September 2011.  The deceased’s injuries were even more serious with both her eyes suffering from swelling which was blackish and abnormal.

13.Two officers of UA Finance noticed, on 6 September 2011, swelling and bruises on the deceased’s face when she went there to obtain a $50,000 loan.

14.On 9 September 2011, ambulance men arrived at the premises at 11:50 am in response to a 999 call.  The applicant and his uncle were present.  The deceased was found lying on a wooden sofa bed and she had many bruises over her eyes and her limbs.  There was blood on the eyebrow.

15.As the deceased had no sign of pulse or breathing, cardiac pulmonary resuscitation was performed.  The deceased was taken to a hospital at 12:12 pm and doctors continued to try to revive her, but failed.  The deceased was certified dead at 3:19 pm.

16.A doctor was told that the deceased had slipped and fallen in the bathroom, but he did not accept it due to her extensive injuries as well as signs of fractures resulting in a punctured lung.  Another doctor noticed multiple bruises to her body with unevenness over the bones in the rib cage showing obvious fractures.  A CT scan confirmed multiple internal injuries and bleeding inside the brain.  The fractured ribs and the punctured lung led to a pneumothorax.

17.The post‑mortem report on the deceased revealed no defensive type of injuries other than the multiple bruises on her arms occasioned by her trying to protect herself from an attack.  There were 78 groups of injuries on the external examination of the body, with many overlapped bruises inflicted at different times.  Of the 24 ribs, 19 were fractured and the sharp edges of some of those ribs had torn the right lung in four places which led to its collapse or partial collapse.  There were brain concussion as evidenced by subdural haemorrhage and both of the deceased’s shoulder blades were broken.  There were also other injuries caused by stamping or kicking.

18.The cause of death was multiple force traumas all over the body, with fractures of ribs, injuries to right lung and brain concussion.

19.The injuries on the knuckles and palms of both the applicant’s hands were consistent with the suggestion that he had used his bare hands to beat up someone.

20.A search of the premises revealed that there were broken items in the kitchen, the sitting room and the balcony.  However, the room which housed the urn of the ashes of the applicant’s girlfriend whom he considered to be his “wife” was untouched and it appeared that no one had entered it for a long time.

21.When the deceased was still being resuscitated, a police officer asked the applicant what had happened, the applicant said, “She passed out when she was having a shower, so I carried her to the sitting room”. When further asked to explain the deceased’s injuries, the applicant admitted that they were caused by his beating her; that he beat her with his hands and feet on 9 September 2011 and on two previous days.

22.When the applicant was charged, he replied: “Because she owed me money and did not repay me, I got angry, so I beat her.”  The applicant further tried to justify what he did to the deceased by accusing her of not being able to do a simple thing or to take care of herself, and to have made wrong accusations against him.  The applicant said that he was under tremendous mental stress because his girlfriend who had accompanied him for 12 years and whom he regarded as his wife out of affection and responsibility died of chronic kidney failure on 3 December 2010.

23.The applicant said he had won $40,000 from gambling and had intended to use the money to bury his girlfriend (wife) and let her rest in peace.  When the deceased asked him for a loan of $50,000, he obliged as he thought she could be trusted.  However the deceased did not repay him the money.  He also mentioned other incidents which made him angry at the deceased.

24.The applicant said he had a bad temper yet the deceased would say thing that would further trouble him.  He said that his family conditions and his own personality, being very stubborn, made him unable to tolerate the deceased and he said he just “could not help my hand”.

25.The applicant described how he punched and kicked the deceased.  He said, “I stamped her with my feet…on her back”, “Hands, arms and feet…in the chaos” despite pleas by the deceased not to hit her.

26.The applicant suggested that he had taken care of the deceased by washing her and by cleaning her clothes, but was irritated because she could not do them herself and he hit her because of his uncontrolled temper.  He said his mother had tried to dissuade him from hitting the deceased, but he did not listen.

27.The applicant described how he assaulted the deceased on the three to four days before she died.  He said he was irritated by the deceased’s low intelligence.  He said he was not a happy person when his girlfriend (wife) was not there and when he was on bad terms with his siblings. He said he kicked the deceased, with his whole body standing on her to step on her back resulting in the deceased saying, “there was numbness over the whole body and it hurt a lot.”

28.The applicant repeatedly suggested that the reasons for beating up the deceased included the fact that she did not repay him the money intended for burying his girlfriend (wife) and letting her rest in peace; that he had emotion with low EQ; that he was very bad tempered and unable to control his temper; that his father was a police officer who had treated him roughly and unpleasantly when he was a child.

29.The applicant admitted that he was very angry on the day when he killed the deceased.  He said in his anger, he smashed everything in the premises and used maximum force to hit the deceased when she refused to comply with his request to leave the premises.  The applicant further admitted that despite warning by his mother, he had repeatedly hit the deceased with the fullest extent of force, although he did not mean to beat her to death.

30.According to the applicant, all the deceased could do when being assaulted by him was to apologise for irritating him and to ask him not to beat her.

The Defence Case

31.The applicant did not give evidence.  He had admitted to having killed the deceased and had in fact pleaded guilty before the jury to manslaughter on the basis of provocation.  In support of his defence, the applicant called a clinical psychologist (Dr Anita Leung) whose opinion was that the applicant had no mental or personal disorder, but he could be easily provoked by others and was susceptible to loss of self-control.  Defence counsel at trial did not raise any other defence.

32.On the issue of provocation, it was suggested that it was much more likely that the deceased died as a result of really serious injuries caused on 9 September 2011 when the CCTV footages suggested that prior to that day, she appeared to be very much alive and looking not too unwell.  The suggestion was that it was as a result of an amalgamation of the various provocative matters that the applicant exploded on the morning of 9 September 2011 which led to him inflicting much more serious injuries on the deceased than those which were set out in his interviews.  Those matters included:

(a)   During his younger years, the applicant had been dealt with harshly by his father who was a policeman because of his bad tendencies including truancy and fights.

(b)   After school, the applicant got various jobs and later came to know his “wife” with whom they spent 16 years together.  But disaster came eventually when his “wife” took to the drink and later died of chronic kidney failure in December 2010.

(c)    The deceased’s appearance in January 2011 came as a replacement for the applicant’s “wife”, someone he could care for and he did. But the applicant’s irritation grew when he later came to know that he could no longer recover the money he had lent to the deceased.

(d)   On 9 September 2011, the applicant was irritated by the delay caused by his mother for sending the deceased away and that the deceased was going to borrow money from the bank of which he disapproved.  He got so angry that he smashed everything in sight at home.

The Judge’s Summing Up

33.The judge gave detailed directions to the jury on the law and on the facts, with particular reference to the evidence of the deceased’s injuries and the applicant’s explanation for assaulting the deceased.  The judge kept reminding the jury of the applicant’s defence of provocation and detailed the evidence relevant to that issue.

34.On the issue of murder, the judge gave both oral and the following written directions on the matters that the prosecution must establish before the charge could be proved, namely:

“Murder is committed when a person unlawfully kills another and, at the time of doing so, intends either to kill that other person or to cause that other person grievous bodily harm (really serious bodily harm).

The burden is throughout on the prosecution to prove each ingredient of the offence beyond reasonable doubt.

So, before you may convict the defendant of the murder of Kam Hiu‑yung, you would have to be sure of each of the following matters:-

1. That the defendant committed an act or acts which caused the deceased’s death;

2. That the killing was unlawful; and

3. That at the time of the act or acts which caused Kam Hiu-yung’s death the defendant either intended to kill her, or intended to cause her grievous bodily harm – in other words, really serious bodily harm.

If you are not sure of any of those ingredients, then the defendant is not guilty of murder.

If you are sure of all these ingredients then, subject to the question of provocation which can, in the circumstances about which I will direct you in due course, reduce a finding of murder to one of manslaughter, the defendant would be guilty of murder.”

35.The judge reminded the jury that on the issue of the applicant’s intent, they should look at the medical evidence on the deceased’s injuries to draw an inference.

36.The judge emphasized to the jury that the applicant’s defence was “provocation”, nevertheless the judge said to the jury:

“…murder is the most serious form of homicide, which is the killing of a human being. There are lesser forms, all of them manslaughter for various different reasons, which I do not need to trouble you with. There is only one in this case which is probably material, and that is provocation. But because it is up to a jury to decide everything on the facts, I cannot tell you that murder has been proved subject to provocation. I have to leave it to you to decide whether the defendant intended to cause at least really serious bodily harm to the deceased when he killed her. If he did not do that then it is manslaughter because he had no intent to cause serious bodily harm…”

37.Before summing up the case to the jury, the judge had extensive discussion with counsel on how to direct the jury.  On his own initiative, the judge suggested that the alternative verdict of “manslaughter with no intent”, i.e. killing by a dangerous and unlawful act should also be left to the jury despite the way the defence was conducted on behalf of the applicant.  Counsel agreed to the judge’s proposed directions to the jury.

Grounds of Appeal

38.Mr Richard D Donald, in his perfected grounds of appeal against conviction, raised two matters; namely:

1.    The learned judge misdirected the jury in law in that he failed to leave the option of a verdict of manslaughter by an unlawful and dangerous act; and

2.    The learned judge misdirected the jury in that he failed to give a lies direction.

39.Relying on HKSAR v Leung Tak Wing [2013] 3 HKLRD 451 and Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354, Mr Donald emphasized that the judge had a duty to place the defence of manslaughter by an unlawful and dangerous act to the jury when such a defence was not wholly incredible or so tenuous or uncertain that no reasonable jury could reasonably accept it.  Mr Donald argued that the judge only directed the jury on manslaughter due to lack of intent, but not manslaughter by unlawful and dangerous act or acts.

40.Mr Donald accepted that the defence of manslaughter by unlawful and dangerous act was not relied on at trial, but contended that the judge was nevertheless obliged to place such a defence to the jury and that his direction to the jury on “manslaughter with no intent” was inadequate and wrong.

41.In his oral submission, Mr Donald argued that the judge had belittled and was dismissive of the defence of manslaughter by unlawful and dangerous act, if he had left it to the jury, by not also giving a handout to the jury as he did with regard to the defence of provocation.  The suggestion was that what the judge did had caused unfairness and injustice to the applicant.

42.Mr Donald also suggested that there were answers given by the applicant in his VRIs which could or might have been determined by the jury to be lies and therefore they should be given a full lies direction to avoid a misuse of the applicant’s lies to his detriment.

Discussion

43.The applicant accepted that he had killed the deceased by beating her up repeatedly.  He did not suggest at trial that he had no intention to cause her grievous bodily harm, but relied on provocation and suggested that he was only guilty of manslaughter.

44.Indeed the applicant’s plea of manslaughter by reason of provocation which was made known to the jury would be inconsistent with a case of manslaughter by unlawful and dangerous act, with no intent to cause grievous bodily harm.

45.On the evidence, it was not at all surprising that the defence would adopt such an approach.  The nature of the deceased’s injuries was inconsistent with the suggestion that the applicant had not intended to cause her really serious bodily injuries and counsel for the applicant clearly recognised it.

46.There were multiple bruises and swelling over all the deceased’s body.  There were multiple internal injuries with bleeding inside the brain.  There were injuries caused by stamping and kicking.  19 of the 24 ribs of the deceased were fractured resulting in a punctured lung.  The applicant admitted to having repeatedly assaulted the deceased.  The applicant admitted that the assault was inflicted with “the fullest extent of force”.

47.In a criminal trial by jury, the judge is of course duty bound to place before them all possible alternatives which are open to them on the evidence on which a jury could reasonably come to a particular conclusion. (See Ho Hoi Shing v HKSAR (supra))

48.The judge is not absolved of the duty to leave an available verdict to the jury even though it was not one for which the defence contended. That obligation was explained by Barwick CJ in Pemble v The Queen (1971) 124 CLR 414 at 441:

“Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.”

49.However, an alternative verdict should only be left if it was one to which a jury could reasonably come to and a judge was entitled not to leave a lesser alternative verdict to the jury if it was not unfair to do so.  As Sir Igor Judge P observed in R v Foster [2008] 1 Cr App R 470 at p 489 para 61:

“Accordingly, not every alternative verdict must be left to the jury. In addition to any specific issues of fairness, there is what we shall describe as a proportionality consideration. The judge is not in error if he decides that a lesser alternative verdict should not be left to the jury if that verdict can properly be described in its legal and factual context as trivial, or insubstantial, or where any possible compromise verdict would not reflect the real issues in the case.”

50.In R v Fairbanks [1986] 1 WLR 1202, Mustill LJ, in delivering the judgment of the Court of Appeal said at p 1205F – 1206C:

“There appear to be three relevant authorities… In each case the appellant had been convicted of a serious offence of violence, and complained that the trial judge had not left to the jury the possibility of convicting on the lesser offence of unlawful wounding. The court dismissed each appeal. The reports are brief, but they demonstrate that the judge is not always obliged to leave all the alternative verdicts theoretically comprised in the charge of the offence, but need not (and indeed should not) do so unless the alternatives really arise on the issues as presented at the trial.

R v Parrott (1913) 8 Cr App R 186 is to a similar effect, although concerned with a different type of offence. Delivering the judgment of the court Phillimore J said at p 193:

‘There may be cases where, in the interests of the prisoner, a judge ought to do so; there are certainly many cases where the interests of justice are not met unless it is pointed out to the jury that they may convict of a lesser offence, or, thinking it a case of “neck or nothing”, they may acquit altogether.’

These cases bear out the conclusion, which we should in any event have reached, that the judge is obliged to leave the lesser alternative only if this is necessary in the interests of justice.  Such interests will never be served in situation where the lesser verdict simply does not arise on the way in which the case had been presented to the court: for example if the defence has never sought to deny that the full offence charged has been committed, but challenges that it was committed by the defendant.  Again there may be instances where there was at one stage a question which would, if pursued, have left open the possibility of a lesser verdict, but which, in the light of the way the trial has developed, has simply ceased to be a live issue.  In these and other situations it would only be harmful to confuse the jury by advising them of the possibility of a verdict which could make no sense.”

51.In any event, the judge, out of abundance of care to ensure absolute fairness to the applicant and with consent of counsel, did expressly leave the issue of “manslaughter with no intent” to the jury by saying to them:

“I have to leave it to you to decide whether the defendant intended to cause at least really serious bodily harm to the deceased when he killed her. If he did not do that then it is manslaughter because he had no intent to cause serious bodily harm…

So, if you convict the defendant of murder, you do not need to consider the less serious form of homicide at all. That all goes by the way. But if you decide that he defendant is not guilty of murder because he is guilty of manslaughter, then you will have to go on to return a verdict of guilty of manslaughter in this case, either because of provocation or because of lack of intent to cause really serious harm…

As I have said already, and I say it once again just to make this plain, I am not seeking to insult your intelligence by saying it could be open to you to say guilty of manslaughter because there was no intent.  It is up to you to decide whether there was the intention to cause really serious harm.  I have to leave it to you even though Mr Arthur himself, quite rightly, has not adopted that line of approach at all. It is not his case.  He says this was manslaughter by reason of provocation but it could be manslaughter because there is no intent if you found that the intent had not been proved.”

52.The judge, in addition to murder and manslaughter by reason of provocation, left to the jury the available verdict of manslaughter on the basis of an absence of intent to cause grievous bodily harm by saying:

“If you convict of manslaughter, there is a last question on page 3, question 7, which in fact I will ask: ‘Was this because of the lack of intent required for murder or because of provocation?’ You will remember what I said to you, I think again on Wednesday: all matters of fact are for you to decide. The defendant is charged with murder. The alternative arises in the event of provocation, of manslaughter, but I cannot tell you that murder has been established. Only you can decide that, and if the ingredients of murder have not been established, then you would say ‘There is a lack of intent here. He didn’t intend to cause really serious bodily harm’….

So the answer to the question: ‘Was this because of the lack of intent required for murder or because of provocation’ – the answer to that will be ‘Lack of intent’ or ‘Provocation’, and in realistic terms – I do not mean to take away anything from what counsel have been saying – it is really, in this case, talking about provocation or murder.  That is the realistic aspect.  But I cannot take it away from you that you must decide whether murder has been established even as to the intent.”

53.The judge might not have followed the specimen direction on manslaughter by an unlawful and dangerous act in a verbatim manner as set out in the Specimen Directions, but the only question relevant to the defence was whether the applicant, in committing the unlawful and dangerous act or acts which caused the deceased’s death, had the specific intent to cause grievous bodily harm to her.

54.In so far as Mr Donald suggested that the judge had failed to leave fairly the option of a verdict of manslaughter by an unlawful and dangerous act. i.e. lack of intent and that such failure had led to an unsafe conviction, we were satisfied that it was entirely without merits.

55.With respect, this was not a case about lies at all.  It was never the prosecution case that the applicant had deliberately told a lie out of realisation of his guilt.  The jury was not invited to treat any lies from the applicant as evidence on the charge or as evidence that could strengthen the prosecution case.

56.Whilst the applicant’s initial response, when questioned by the police as to what had happened, that the deceased passed out when she was having a shower in the bathroom, was not true, neither the judge nor the prosecution had invited the jury to use such a lie or any other lie as being probative of the applicant’s guilt.

57.The judge’s reference to the deceased’s injuries and what the applicant said to the police was simply to identify the differences in the contents of his out-of-court statements or his defence and the prosecution evidence against him.  The applicant’s lies, if any, were only relevant to the issue of his credibility.

58.On the question of whether a “lies direction” is necessary, Chan PJ in Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113 at p 128H – 129C:

“In view of the circumstances in which the criteria were set, a ‘full Lucas direction’ is not always necessary. Kennedy LJ in R v Burge and Pegg [1996] 1 Cr App R 163 at p.173 summarised the circumstances in which a Lucas direction is usually required. However, he added that ‘where there is no need for such a direction (as in the normal case where there is a straight conflict of evidence), it will add complexity and do more harm than good.’

In the great majority of cases where the prosecution contend that an accused is telling lies in the witness box, a direction on lies is inappropriate.  R v Barnett [2002] 2 Cr App R 168, 173. In cases where the rejection of any explanation given by an accused almost necessarily leaves the jury with no choice but to convict as a matter of logic, or where the jury are asked to decide on the truth of what an accused said on a central issue in the case, the usual direction on the burden and standard of proof would normally be sufficient.”

59.We also wish to repeat what McWalters J said in HKSAR v Chan Kam Loi CACC 410/2012 on “Lies Direction”:

“89. What determines whether a lies direction is necessary is not whether the jury are likely, in the course of their assessment of a witness’s credibility, to find that on a particular matter a witness has lied, but rather on whether the prosecutor is inviting the jury to find that what an accused said was a clear lie proven by independent evidence, was deliberately told, related to a material issue in the case and for which there could be no innocent explanation and which, consequently, could be used by the jury as strengthening an inference of guilt or, in the particular circumstances there was a danger that the jury may engage in an impressible process of reasoning to the disadvantage of the accused in its use of the fact that it finds the accused lied in his testimony or in an out of court statement. (See the decisions of the Court of Final Appeal in Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113 and Jim Fai v HKSAR (2006) 9 HKCFAR 85. The legal position was succinctly stated by Stock JA (as he then was) in HKSAR v Chan Boon Ning CACC 571/2001; unreported, 7 August 2003, at paragraph 48 where he said:

‘It seems still not to be appreciated that a lies direction is reserved for the limited circumstances in which a lie is used not merely to undermine the credibility of the defence, but as in itself constituting a separate item of evidence or conduct in support of the case against the defendant, or where there is a danger that the jury might use a lie, not merely as undermining the credibility of a defence, but as itself probative of guilt.’

90.    In the present case neither the prosecution nor the judge was inviting the jury to use any finding by it that the applicant had lied in an evidential way as probative of the applicant’s guilt.  The applicant’s evidence was being contrasted with other evidence adduced by the prosecution and the jury were being invited to consider whether the differences between the two might affect the weight they gave to the applicant’s evidence.  This is the archetypal situation where the Court of Final Appeal and the Court of Appeal have said in innumerable judgments that no lies direction is necessary.  There is no danger in this situation of the jury embarking upon an impermissible line of reasoning in reaching its determination of the guilt of the applicant.  There is no merit in this ground of appeal.”

60.The applicant’s “lies” were relevant only to his credibility and there was no risk of the jury making any “impermissible use” of such lies.

61.For the same reasons given by McWaters J in Chan Kam Loi (supra),Mr Donald’s 2^nd ground of appeal had no merit and must be rejected.

62.The primary issue, based on the defence of provocation was whether the prosecution could negate the suggestion that the applicant had suddenly and temporarily lost his self-control by things that had been said and/or done by the deceased and his other family members rather than by his own bad temper or that such conduct was or might have been such as to cause an ordinary and sober person of the applicant’s age and sex to do as he did.

63.The judge had, both in his oral and written directions, listed out the provocative conduct/behaviour of the deceased and others, that could be relied on to support the defence of provocation for the jury to decide if the applicant had been provoked.  The judge had also reminded the jury that they must take into account everything which was done and/or said according to the effect which, in their opinion it would have on an ordinary and sober person who was of the applicant’s age and sex.

64.The judge’s direction to the jury on the only real issue of provocation was comprehensive and fair.  Mr Donald did not seek to argue otherwise.

Conclusion

65.We were satisfied that the murder conviction against the applicant is a safe and satisfactory one and we dismissed his application for leave to appeal against conviction.

66.As sentence for murder is prescribed by the law and the only sentence that could be imposed was the one imposed on the applicant, we also dismissed the application for leave to appeal against sentence.

Mr Wesley W C Wong, SC, DDPP and Mr Raymond Cheng, SPP of the Department of Justice, for the respondent

Mr Richard D Donald, instructed by A M Mui & Kwan, assigned by the Director of Legal Aid, for the applicant (re: conviction)

The applicant appeared in person (re: sentence)