HKSAR v. LIANG YAOQIANG

CACC 131/2018

[2020] HKCA 941

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 131 OF 2018

(ON APPEAL FROM HCCC NO 37/2017)

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J U D G M E N T

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Hon Macrae VP:

1.  I have had the distinct advantage of reading the carefully reasoned arguments of McWalters and Zervos JJA in this appeal.  I agree with them both that the appeal against conviction must be allowed.  What falls for me to decide is whether the interests of justice demand a fourth trial.

2.  I have come to the decided view that, unusual though it may be, we should order a retrial.  On this matter, I agree with the reasoning of Zervos JA.  Given the thorough analysis of the issues and the law by my two fellow judges, I can state my own reasons shortly.

3.  The first and most important reason is that the crime with which we are concerned is murder, which is traditionally and rightly regarded by the community and the courts which they represent as the most serious offence in the criminal calendar.  It is obviously important from everyone’s point of view, not least the family of the deceased, that there be a proper adjudication according to law of the guilt of the accused in respect of such a serious offence.

4.  Secondly, this is not a case where there is any issue as to whether the applicant killed the deceased.  There is no dispute as to the fact that he caused her death nor how he brought it about: what is in issue is why.  That issue, which inevitably involves a careful examination of the applicant’s conduct at the time of the killing, as well as any explanation he put forward at the time and chooses to advance in evidence, is best resolved by a jury on the basis of all the material put before it which bears on the issue of his state of mind and the reasons for his actions.  And that resolution is best undertaken by a jury which hears the evidence than an appellate court which reads it.

5.  Thirdly, since the determination of this particular case necessarily turns on what was in the mind of the applicant at the time he killed the deceased, the argument that time will have reduced the memories of witnesses on vital details is more apparent than real, since the applicant’s own recollection is likely to be vivid and graphic; as he has already demonstrated on each of the three occasions that he has previously given evidence.  In any event, the jury will have the benefit of a direction in accordance with Direction 29 of the Specimen Directions in Jury Trials promulgated by the Hong Kong Judicial Institute, so as to make allowances for the fact that with the passage of time memories fade.

6.  Fourthly, whilst there have been three trials, this, somewhat strangely, is the first trial at which the applicant has advanced the issue of diminished responsibility.

7.  And fifthly, one cannot shy away from the fact that the judge’s error was, with respect, contributed to by the submissions of the applicant’s leading counsel himself.

8.  In my judgment, the scales come down firmly on the side of ordering a retrial of this very serious offence.

Hon McWalters JA:

9.  On 24 April 2018, the applicant was convicted after trial before M Poon J (“the judge”) and a jury of the murder of Madam Yeung Sau Yu (“the deceased”).  He was sentenced to life imprisonment.  He now seeks leave to appeal against his conviction.  This was his third trial for this offence.

10.  At the hearing of the application we reserved our judgment but sought further written submissions from the parties on whether this court should, in the event we allowed the appeal, order a fourth trial or substitute a verdict of manslaughter, and if we adopted the latter course on what factual basis we should do so.  Submissions from the parties on these issues were subsequently filed with the court. 

11.  The court then became aware that prior to commencing her summing-up the judge had discussed with the prosecutor, Mr Phil Chau, and the defence counsel, Mr Andrew Bruce SC[1], leading Ms Denise Souza, her proposed directions on the defence of provocation as set out in her written outline which she provided to them.  The court obtained a transcript of this part of the hearing and sent it to the parties, together with transcript of the closing addresses of counsel.  Because of the importance of what was contained in these transcripts to the issues in the appeal, the court resumed the hearing of the appeal on 10 June 2020 so that it could receive further submissions from the parties.

The prosecution case

12.  There was no dispute that the applicant killed the deceased around 6 or 7 am on 12 September 2009 in the flat where they cohabited and that he had done so by chopping her with a knife approximately 213 times. 

13.  The key issues in the trial were whether either of the defences of provocation or diminished responsibility were available to him so as to reduce his crime to manslaughter.      

14.  After the applicant had gone to work on 11 September 2009, which was the day before the deceased was killed, the deceased had sexual intercourse with another man in the flat.  In the morning on 12 September 2009, this man could not contact the deceased and made a report to the police.  The police later gained entry to the flat and found the deceased’s body on the floor with extensive cut wounds. 

15.  The applicant fled Hong Kong and went to the Mainland after killing the deceased.  He was arrested on 13 September 2009 when he returned to Hong Kong.  On arrest, he said under caution:

“The person was killed by me. It was she who made me like this out of anger. She remained to be like that, no matter what was said”[2].

16.  The applicant later took part in two video records of interview.  In these interviews he explained how he came to know the deceased and to cohabit with her in the Mainland.  He said he started having suspicions that she was having an affair with another man and thought it might be the manager of the 7-Eleven store where she worked[3]. He claimed that on 11 September 2009 he found a used condom in the rubbish bin placed between the second and the third floor, which he said was still warm.  He confronted the deceased about the used condom as he was anxious to discover the identity of her lover but she denied she was having an affair.  He wanted to look at her phone but she would not allow him to do so.  A quarrel ensued, during which he slapped the deceased several times. 

17.  The applicant said he then went to the kitchen where he consumed some rice wine.  However, the deceased taunted him by saying she liked to be pregnant, and this angered the applicant who then got hold of a knife and in a rage he chopped her 10-odd to 20 times because she was lying, unfaithful and refused to tell him the identity of the man who was her lover.  The applicant claimed that after chopping the deceased he offered to take her to hospital but she refused.  He described her as “sharp-tongued” and said that he pressed against her to prevent her from crying out.

18.  The judge summarised the applicant’s description of what happened by reference to the counter numbers in the transcript of his record of interview:

“He said he chopped her to death because she refused to tell him the identity of the man, 102, and after he chopped her a few times, he went mad and did not know it, 208. On this occasion, he might be possessed with spirits, with devils, 967, and she was not faithful and was lying and that he was in a rage, 969. He said she was still moving and talking before he gave her the final two chops, 899. After he took a shower, he saw that she could not move, but not sure whether she had died or not, 335. He said that after he had killed her, he had a better fettle because he was often tortured by her and was acting like a slave, 655.”[4]

19.  Dr Ng Chung Ki (PW5) was the forensic pathologist who performed an autopsy on the deceased.  He found approximately 213 cut wounds and signs of asphyxiation by manual strangulation.  Most of the cut wounds were severe, in the sense that they were penetrating wounds, but some were minor and some were defensive wounds.  One of the wounds was a cut through the skull into the meninges, causing the brain to be injured.  He concluded that the cause of death was multiple injuries. 

20.  Dr Ng took the view that it would have taken at least 5 to 10 minutes to cause all the cut wounds and the number of injuries were more than enough to kill.  He could not tell which of the wounds caused the deceased to become unconscious, nor could he tell the sequence of the injuries.  He agreed that the wounds indicated a frenzied attack and described the force used in inflicting the wounds as being moderate to forceful.

21.  A forensic scientist (PW6) who was an expert in blood spatter patterns agreed that the blood spatter could suggest some movement by the deceased, which indicated that when she was under attack she did not stay in one place.

The defence case

22.  The applicant gave evidence that he came from Jiangmen and had married his ex-wife in 1995 in the Mainland and their union had produced a daughter.  In 2004, his ex-wife came to live in Hong Kong, whilst he and their daughter remained in Jiangmen.  They visited Hong Kong regularly to be with the ex-wife.  However, in 2006, he discovered his ex-wife’s infidelity and they agreed to separate, although she continued to support his application to move to Hong Kong on the ground of family reunion.  He subsequently started a sexual relationship with the deceased in Mid-Autumn 2007 in the Mainland.

23.  In April 2009, the applicant moved to Hong Kong together with his daughter and the deceased.  The applicant said he found work as a transport worker earning $10,000 per month and the deceased found work in a 7-Eleven store.  The applicant said he was responsible for most of the household chores.  However, from August 2009 the relationship with the deceased deteriorated.  The deceased started to dislike his daughter so she moved out and went to live with her mother.  Still, the relationship between the applicant and the deceased did not improve. 

24.  A number of incidents took place which caused the applicant to suspect that the deceased was having an affair[5].  Prior to 11 September 2009, there were two occasions when he arrived home and found condoms in the communal rubbish bin in the stairwell of his building.  The second of these two occasions was on 8 September 2009.

25.  On 11 September 2009, the applicant rang the deceased at around 5.15 pm after finishing work.  She told him that she was going to have a meal with her ex-husband.  Whilst having this telephone conversation with the deceased, the applicant said he heard a male voice in the background. On arriving home, the applicant found the bedsheet in a mess with some pubic hairs on it.  The rubbish in the flat had gone and he went to check the communal rubbish bin.  He found inside the bin a used condom with semen in it wrapped in a piece of tissue.  He said he felt it and it was still warm.

26.  He took the garbage back to his flat and took photos of it with his mobile telephone.  He was in tears and felt very sad and wanted to jump to his death.  His emotions were more intense than on the other two previous occasions because he now felt that his suspicion had been proven to be true and that he had been made a cuckold.

27.  The applicant called the deceased around 6 pm and confronted her about the condom.  She denied that any man had been in the flat and taunted him about becoming a garbage collector.  He called her ex-husband and found out that she was not having dinner with him, which was consistent with the ex-husband’s evidence[6].  In subsequent calls to the deceased, he learned that she was in Mongkok and so he went to 3 or 4 restaurants there in search of her.  He could not find her and returned home around 11 pm. 

28.  The deceased arrived home after midnight, smelling of alcohol and in a high mood.  She taunted him about looking sad as if his father had died.  He confronted her again about the condom but she again denied having a lover.  Things then calmed down a bit and the deceased took a shower.  Whilst she was in the shower the applicant checked the deceased’s mobile telephone and found all the call records and SMS messages deleted. After the shower, the deceased initiated sexual intercourse with the applicant.  The applicant then engaged her in further conversations about the condom, but to no avail. 

29.  Feeling stressed, the applicant left the flat and went out into the street.  He called her on his telephone from the street in order to ask her to throw him his wallet so he could buy some food.  This call occurred at 2.04 am.  The deceased refused the applicant’s request and so he returned to the flat where he found her on the telephone.  When he returned to the flat, he went to the kitchen and drank some rice wine.

30.  The deceased then engaged in further taunting of the applicant.  She compared him to her ex-husband and her boyfriend and said both were more accommodating than him.  She also said that all the men she had known were more capable than him.  He said he then felt faceless.  The judge summarised what the applicant said next occurred:

“…He told her he found out she was not having dinner with her ex-husband. Then he said her reaction was huge. She taunted him by criticising his sexual performance and said that she would like to be pregnant by another man. That she liked an exciting sex life. That he could not sustain one or two minutes next to impotence. She also said that it was more exciting to have sex with anybody else. She even hit him on his shoulder twice with a telephone.”[7]

31.  This led to the applicant making three attempts to jump out of the window but he was restrained by the deceased.  This was sometime between 5 am and 6 am.  The deceased then called her ex-husband telling him that the applicant had gone crazy and that she was scared.  At one point the applicant took the telephone from her and apologized to the ex-husband[8].  This telephone call took place at 5.40 am.

32.  After the telephone call with the ex-husband, the applicant again asked the deceased who had used the condom.  She twice thrust it into his face near his mouth, asking him to eat it so that he would stop asking her.  He felt insulted and degraded by this.  He slapped her twice and grabbed her neck to stop her from talking, but let her go when she shouted for help. There were further insulting things said culminating in her taunting him that he was not his daughter’s father and that she had been fathered by a man who had an affair with his ex-wife.  It was at this point, he said, that he lost control and his mind went blank.

33.  He went into the kitchen, fetched a knife and attacked the deceased frantically.  He could not remember the details, only that it was a continuous act and when he was finished he felt very tired.  After the attack, he wrapped her in a blanket and offered to take her to hospital, but she refused.  He then sat on the ground but could not say for how long. There were some telephone calls for the deceased but the applicant told the callers that the deceased had left for work.  The applicant said he lied in order to conceal what had happened and so that he could see his daughter before taking his own life.  He had a shower and went to see his daughter and confessed to her what he had done.  He eventually went to the Mainland and later returned to Hong Kong and was arrested.  He agreed that what he had said upon arrest and in his two video records of interview was voluntary. 

The expert psychiatric evidence

The defence psychiatric expert

34.  The defence called Dr Wong Chung Kwong, a psychiatrist, who had interviewed the applicant for three and a half hours, some 8 years after the killing.  Dr Wong expressed the opinion that at the time of the killing the applicant was suffering from an abnormality of the mind arising from the combined effects of two psychiatric disorders, namely a Major Depressive Disorder (“MDD”) of mild to moderate severity, and Acute Dissociative Reactions to Stressful Events (“ADR”), which was a brief, acute and serious disorder coupled with four underlying factors, namely, hypoglycaemia, sleep deprivation, alcohol and emotional memory of his ex-wife’s adultery.  

35.  Dr Wong was of the view that the applicant would have been suffering from the MDD since 2006 but between July and September 2009 this disorder would have worsened.  During this period, it would have risen to a level of severity between mild and moderate because of the continuous and severe stress created by the deceased’s behaviour.  In his report, Dr Wong said of the MDD:

“26. Major Depressive Disorder is a mood disorder consisting of one or more Major Depressive Episodes. Major Depressive Disorder is not just ‘excessive unhappiness’. It is a psychiatric disorder due to abnormality of that part of the brain that regulates mood functions. This disorder is often brought about by stressors. The discovery of his ex-wife’s adultery was a catastrophic stressor to Mr Liang.

27. The clinical features of Major Depressive Disorder cover the domains of mood, cognitive, physical, volition, memory and perception, i.e. the whole person is affected.”[9]

36.  Dr Wong said that the applicant, at the time of the killing, was under the combined effect of several important factors.  They were:

(i)  the MDD which not only led to a depressed mood but also impaired the applicant’s ability to think rationally and to control his impulse and behaviour;

(ii)  hypoglycaemia, which compromises mental functions and would have been caused by the applicant’s lack of food;

(iii)  sleep deprivation, as the applicant had not slept the whole night; and

(iv)  the consumption of the alcohol which would have had a disinhibiting effect on the applicant.[10]

37.  In his report, Dr Wong stated the cumulative effect of these four factors on the applicant as being:

“The totality of these four factors impaired his ability to think rationally and his ability to control his impulse and behaviour.”[11]

38.  Dr Wong also discussed the applicant’s impulse control and concluded:

“…In the case of Mr Liang there was no evidence to say he had acted violently in any way prior to the incident. This is in line with the parental influence he has received, his normal family and childhood experience, and his normal personality and values. In particular, he dislikes conflicts, and his habitual responses to conflicts are backing off, letting go, and forgiving. Clearly this is reflected in his highly tolerant attitude to the deceased.”[12]

39.  With nothing to indicate that the applicant was prone to losing his temper or was lacking in an ability to control his impulses, Dr Wong turned to consider what might have caused the applicant to behave in a frenzied way toward the deceased.  He concluded that the applicant, at the time of the killing, was, in fact suffering from a second psychological disorder, namely ADR.  This disorder is linked to the neurophysiological concept of arousal which describes the state of a person’s alertness.  He explained:

“…In response to threat or provocation, arousal increases. Frenzy is the extreme degree of hyperarousal. Frenzy is usually brought about by extreme fear and/or rage. In this present case, the emotion was rage.”[13]

40.  He also explained how frenzy is different from anger, even extreme anger, and that unlike anger, frenzy is an abnormality not experienced by normal people.  Dr Wong was of the opinion that the applicant’s state of frenzy was brought about by the deceased’s behaviour and words.  The applicant’s mental functions became disconnected and he attacked her with force like a volcanic eruption, losing control of his emotions.  When in such a state, a person is not unconscious, and “can execute behaviour that is a constricted, repetitive, intense and often violent response to the threat and provocation they face.”[14]

41.  Dr Wong was of the view that it was the deceased’s provoking words and behaviour that triggered the ADR and it did so in two ways.  Firstly, it directly impacted on him and, secondly, it had an indirect effect on him through the phenomenon of emotional memory.  Emotional memory refers to the emotional impact of an event that is recorded in the limbic system of the brain.  How this was relevant to the applicant’s response to the provocative behaviour of the deceased was explained by Dr Wong as follows:

“58. In the case of Mr Liang, he was deeply traumatized by his ex-wife’s adultery. The psychological pain (anger, shame, and grief) have become deeply imprinted in his emotional memory. The deceased’s thrusting the used condom into his mouth together with her most humiliating words was probably the fatal trigger of that most painful emotional memory. I think, therefore, the onset of Acute Dissociative Reactions to Stressful Events was that point in time. He went into a state of frenzy. In a state of frenzy, he killed the deceased.”[15]

42.  By this analysis of what caused the ADR to be triggered, and of its impact on the applicant, Dr Wong was able to place the timing of the onset of the ADR to before the applicant struck the first blow and descended into a state of frenzy.

43.  Dr Wong’s assessment of the applicant’s mental state at the time of the killing was as follows:

“59. Mr Liang was suffering from two psychiatric disorders at the material time of the incident. The first disorder was Major Depressive Disorder of mild to moderate severity. The second disorder was Acute Dissociative Reactions to Stressful Events which was a brief acute and serious disorder. In addition, there were four other underlying factors at work: hypoglycaemia; sleep deprivation; alcohol; and the emotional memory of his ex-wife’s adultery.”[16]

44.  Against the backdrop of this assessment, Dr Wong concluded that at the time of the killing the applicant was suffering from an abnormality of mind due to these two psychiatric disorders (plus the four underlying factors) which severely compromised his mental capacity to think and judge rationally and impaired his ability to control his emotion, impulse and behaviour. He concluded that it substantially impaired the applicant’s responsibility for the killing. 

The prosecution psychiatric expert in rebuttal

45.  In rebuttal, the prosecution called Dr Oliver Chan.  Dr Chan disagreed with Dr Wong’s finding that the applicant had been suffering from MDD at the time of the killing.  Instead, he found that the applicant had been suffering from an adjustment disorder but did accept that:

“It was clear from the history that LIANG’s discovery of the deceased’s infidelity has been a major life stressor in the two months preceding the alleged offence.”[17]

46.  He explained why he did not agree with a diagnosis of MDD by saying:

“17. A differential diagnosis of adjustment disorder is major depressive disorder. They were differentiated by their symptom profiles, in which to fulfil a diagnosis of major depressive disorder, a number of specified symptoms have to be present. My clinical judgement is that LIANG did not meet the criteria of a major depressive disorder at the material time of the index offence based on a) the absence of sufficient clinically relevant symptoms; and b) his longitudinal course of symptom evolution was not compatible with a major depressive disorder.”[18]

47.  Dr Chan said that an adjustment disorder may be considered as an abnormality of mind, but took the view that the applicant’s adjustment disorder did not substantially impair his mental responsibility for his act, and could not provide a causal explanation for the killing.  He reached this conclusion, firstly because the applicant’s ability to remember in detail the temporal sequence of events of the night of the killing suggested “an intact cognitive faculty even after his consumption of two taels of wine that he reported.”[19]  Secondly, the applicant appeared to have exercised self-control to de-escalate the situation when he left the flat in order to avoid further confrontation. 

48.  These matters prompted Dr Chan to conclude:

“He was aware of what he was doing when he initiated the act.”[20]

49.  However, Dr Chan agreed that the applicant might have been on a highly emotional roller coaster ride just prior to the killing, and that he went into a dissociative state during the attack.  The fact that the applicant could remember what happened before he attacked the deceased but not what happened during the attack indicated that the applicant entered into this dissociative state only after he had administered the first few chops to the deceased.  His ability to carry out goal or task-oriented matters like taking a shower, leaving the flat and making arrangements to meet his daughter showed that the dissociative state was temporary and had declined after the killing.

50.  When cross-examined on when the dissociative state occurred, he agreed that although the applicant had been on an emotional roller coaster ride on the evening of the killing it was unlikely the dissociative state would have occurred before the chopping.

Discussion between the judge and counsel on directions on the law 

51.  The defence closed its case on the morning of Thursday 19 April 2018 and the prosecution indicated that it wanted to call Dr Chan in rebuttal.  However, Dr Chan would not be available until Monday 23 April and so the jury were sent away until that time.  The judge then made use of the time to discuss with counsel the directions she should give the jury. 

52.  The judge prepared written directions for the jury on the law relating to murder, provocation and diminished responsibility and when the court resumed after lunch on 19 April the judge gave these to counsel.  Unfortunately, that initial draft is no longer available to us.  Before the judge engaged with counsel on these proposed written directions she adjourned for 30 minutes.

53.  When the court resumed the judge turned first to Mr Bruce who referred the judge to her list of matters that could constitute provoking conduct which had been typed in italics.  Mr Bruce suggested that to this list should be added the refusal of the deceased to reveal the identity of her lover.  The judge said she would mention that in her discussion of the evidence rather than in her directions on provocation.

54.  Mr Bruce then turned to paragraph 8 of the proposed handout, which in the version ultimately provided to the jury would appear to have become paragraph 7.  This is the paragraph dealing with the special characteristics of the applicant which, when vested in the ordinary person, might cause the ordinary person to do as the applicant did.  The judge’s direction was as follows:   

“If you are sure that what was done and/or said would not have caused an ordinary, sober person of the defendant’s age and sex [and other special characteristics] to do as he did, the prosecution will have disproved provocation. …”[21]

55.  This proposed direction prompted the following exchange with Mr Bruce:

“MR BRUCE: And we wish to engage you as to the part in square brackets, the special characteristics and...

COURT: What do you want me to say about these special characteristics?

MR BRUCE: First of all, it is submitted that the major depressive disorder which is of mild to moderate degree is a special characteristic. It will be a little complicated because Dr Chan goes to adjustment disorder.

COURT: Major depressive disorder...

MR BRUCE: Mild to moderate. That’s Dr Wong’s position.

COURT: If found.

MR BRUCE: Yes, if -- yes, of course, of course, all of that is...

COURT: Yes. I mean I can’t just put major depressive disorder there.

MR BRUCE: No, no, no, that would...

COURT: Be usurping the function...

MR BRUCE: ...be unfair to the prosecution and...

COURT: Yes.

MR BRUCE: ...render the matter unbalanced.

COURT: If you should find that there was major depressive disorder.

MR BRUCE: Yes, again I wasn’t -- I assume that the language would be communicated on that basis. And the memory of previous adultery, this is the emotional memory point that Dr Wong spoke about today and yesterday. And taking my inspiration from paragraph 47 of the Court of Final Appeal’s judgment in Liang which I have -- here it is. That is at page 25. Does my Lady have a copy?

COURT: It’s in my chambers. I’ll ask my...

MR BRUCE: We have a spare.

COURT: Yes. Thank you. Paragraph 48.

MR BRUCE: Yes.

COURT: Yes.

MR BRUCE: The magic words I want to respectfully draw to your Ladyship’s attention were: ‘Thus, the reasonable man who is expected to exercise ordinary powers of self-control’ - all of that is in your direction – ‘is a person having the history, experiences, background, features and attributes of’...

COURT: Paragraph 48, which line?

MR BRUCE: 47, my Lady.

COURT: 47?

MR BRUCE: The first sentence.

COURT: Yes. Yes. Please continue.

MR BRUCE: And the proposition I was going to make is that the direction in this context will have to deal with, again if proved or if you consider that it might be the position, the ‘experiences, background, features and attributes of the defendant relevant to the provocation’, and the history we’ve covered, pretty much ad nauseam, in terms of the previous adultery and associated matters. Experiences would include, in my submission, the earlier condom incidence if I could put it in. I’m sure your Ladyship understands the shorthand I’m using as far as that’s concerned.

COURT: Yes.

MR BRUCE: ‘Background, features and attributes of the defendant’ I take as one concept respectfully. And the background is he is a mainlander with some education, some training in the army. His features and attributes -- the -- he kept talking about concerns with family and wanting to have one in simple language. And his attributes I think we have covered already. But that was the mental checklist that commended itself to me and...

COURT: Yes, that should also go within paragraph 8, right?

MR BRUCE: Yes, as to the reasonable man with the characteristics of -- with the magic word ‘powers of self-control’, ‘having the history, experiences, background, features and attributes of the defendant’.

COURT: Yes.

MR BRUCE: I’m always reluctant on my feet to offer a draft, as it were, but...

COURT: It’s good enough.

MR BRUCE: Thank you very much. Those are my submissions unless I can assist further as far as the handouts are concerned.

COURT: Do you have anything to say, Mr Chau?

MR CHAU: I think I’m in complete agreement with Mr Bruce. I’m quite happy for...

COURT: All right.

MR CHAU: ...your Ladyship to direct on those lines.”[22]

56.  What stands out from this discussion with the judge is that on the issue of whether the applicant was provoked the only concern Mr Bruce had was in respect of factual provoking conduct and the evidence of the applicant’s mental health was seen as relevant to the special characteristics of the applicant in considering the “do as he did” element of provocation. No thought was given by either Mr Bruce or Mr Chau to the relevance of the psychiatric evidence to the question of whether the applicant lost his self-control.

The closing speeches

57.  In the prosecution closing speech Mr Chau focused on whether there was provoking conduct by the deceased which caused the applicant to lose his self-control and invited the jury to disbelieve the applicant’s testimony as to what happened during the time the applicant and the deceased were together before he killed her.  In this part of his speech he did not address the question of whether the applicant lost his self-control but rather emphasised that the deceased did not do or say anything to cause the applicant to lose his self-control.  The other part of the provocation defence that he addressed was the “do as he did” element of the second limb of the defence.

58.  Mr Bruce, however, commenced his speech by emphasizing the frenzied nature of the killing, as supported by the forensic evidence, and suggesting that the real question for the jury was why this attack happened.  Mr Bruce then traced the history of the relationship between the applicant and the deceased and how that relationship deteriorated as the applicant became increasingly suspicious of his partner’s infidelity.  Against this background, Mr Bruce portrayed the applicant as being on an emotional roller coaster ride from 11 September to when he killed the deceased on the morning of 12 September. 

59.  When dealing with the defence of provocation Mr Bruce referred to the requirement that there be a loss of self-control and on this issue referred to the evidence of Dr Wong where he distinguished between normal human anger and abnormal frenzy.  It was this aspect of the psychiatric evidence, rather than the applicant’s MDD, that was the focus of his address on the first limb of the provocation defence.  In the concluding part of his address to the jury Mr Bruce quoted Dr Wong who, after referring to the fact that the applicant killed the deceased by chopping her at least 213 times, said:

“These wounds show that Mr Liang was in a state of frenzy when he killed the deceased.”[23]

Mr Bruce then continued his speech by saying:

“… Importantly, Dr Wong concluded that frenzy can be the only explanation, the only explanation, for his conduct. Having heard all of the evidence from the prosecution, the accused and Dr Wong and Dr Chan, I’d ask you to ask yourselves, is what Dr Wong has just been recorded as saying, whether this is the likely explanation for what happened here? Is this just a state of mere jealousy and anger and had he in a cold or calculating way in order to stop Ms Yeung from leaving him just chopped 213 times? Or do you think that what was said and done to Mr Liang over the months leading up to the night, that in that hour after the phone call at 5.40 am, that he lost his control and he descended into that frenzied attack?”[24]

60.  Mr Bruce did refer to the applicant’s MDD but this was when discussing the special characteristics of the applicant for the purpose of the second limb of the provocation defence ie whether the provocation would cause a person having ordinary powers of self-control to do as the applicant did.  He did not link the attributes of MDD to the element of the first limb that the applicant had lost his self-control.  He did not remind the jury that the provoking acts of the deceased were not directed at a normal person, but rather at a person whom the jury might find was suffering from MDD, an illness which could affect adversely the applicant’s ability to think rationally and to control his impulses.

The grounds of appeal

61.  Mr Bruce advanced two grounds of appeal on the applicant’s behalf.  The first ground relates to the defence of provocation. The second ground relates to the defence of diminished responsibility.  Both concern the adequacy of the directions in respect of the expert psychiatric evidence.  As we find merit in the first ground of appeal it is not necessary for us to deal with the second ground of appeal.

The first ground of appeal: the defence of provocation

62.  This ground of appeal complains that the judge wrongly failed to direct the jury to consider the expert psychiatric evidence in relation to both defences of provocation and diminished responsibility.  This ground of appeal is based upon an assertion that in her summing-up the judge directed the jury to consider the psychiatric evidence in relation to only the defence of diminished responsibility.     

63.  In support of this ground, Mr Bruce submits that in her general directions on the relevance of expert evidence, the judge’s reference to abnormality of mind related only to the issue of whether it substantially impaired the applicant’s mental responsibility for the killing, and she did not mention that it was also relevant to the issue of whether the applicant was actually provoked.  When the judge directed the jury on the question of whether the applicant was actually provoked, she did not make any reference to the expert evidence, and, in particular, Dr Wong’s evidence.  Although, Dr Chan’s evidence would have also been relevant to this issue.

64.  Furthermore, in her directions on ordinary self-control, the judge made reference only to MDD and adjustment disorder, but not to the onset of the ADR.

65.  Mr Bruce emphasises that Dr Wong’s evidence was adduced in support of both defences of provocation and diminished responsibility and it was particularly relevant to the issue of whether the applicant lost his self-control (the 1^st limb of provocation) and to the special characteristics of the applicant (the 2^nd limb of provocation), as Dr Wong took the view that the combined effects of MDD and ADR severely compromised the applicant’s ability to think rationally and to control his emotions, impulse and behaviour at the time of the killing.   

66.  Even though the judge made reference to MDD and adjustment disorder in her directions on the concept of ordinary powers of self-control, Mr Bruce submits that the jury would not have understood they were to also consider the expert psychiatric evidence or how they should evaluate it.  The absence of such a direction would lead the jury to think that they need to have regard to the psychiatric evidence only when considering the defence of diminished responsibility.  

67.  Another aspect is that, while the judge referred to MDD and adjustment disorder, she did not mention ADR.  She failed to properly direct the jury to consider and evaluate Dr Wong’s diagnosis and how it might have impacted upon the applicant at the material time, particularly in respect of the timing of the onset of the ADR.  This argument is all the more forceful, Mr Bruce submits, because Dr Chan also agreed that the applicant had gone into a dissociative state during the attack.  This was highly indicative of the applicant having lost control, and was therefore relevant to whether he had in fact lost self-control.

68.  Mr Bruce relies on the Court of Appeal’s judgment in HKSAR v Lo Chun Siu[25], where a direction that the jury ought to ignore evidence of the defendant’s Attention Deficit Hyperactive Disorder in considering the defence of provocation was held to be “clearly a misdirection” because this evidence affected the issue of whether the defendant lost his self-control.  Mr Bruce argues that the judge’s failure to refer to the psychiatric evidence in the context of the provocation defence is akin to a direction to ignore the psychiatric evidence as it related to the provocation defence.  It amounted, he says, to the defence not being properly put to the jury.

The respondent’s submissions

69.  Mr Eddie Sean, with Mr Andy Lo, appeared for the respondent.  Mr Sean asks the court to note that the judge reminded the jury of the alleged provocative acts when directing on whether the applicant was actually provoked and in a later part of the summing up, she gave a detailed summary of the expert psychiatric evidence.  In the course of discussing the defence of provocation the judge said:

“Those are matters which I say are included in the concept of provocation consideration, but they are not the only items. I will go over other items whilst I analyse the facts with you. You may find other items which relate to the provocation issue as well.” [26] (Emphasis added.)

Mr Sean says that when the judge used the words “other items” the jury would have understood her to be referring to the psychiatric evidence. 

70.  When dealing with the meaning of a person having ordinary powers of self-control and the relevant factors to be considered, the judge referred to the experts’ different findings of MDD and adjustment disorder.  When discussing what is meant by a person having ordinary powers of self-control she directed the jury that such a person was “an ordinary sober person … having the history, experience, background features and attributes of the defendant.”[27] She went on to explain what this meant by saying:

“…Such special characteristics would include, as you have heard in the evidence, amongst others, that he was a person who was brought up in mainland China, he had a harmonious relationship with his family there, he had some education, he had been a professional driver and a new immigrant to Hong Kong at the time of the offence, and whose wife committed adultery and parted with him, and also subject your findings that he suffered mild to moderate grade major depressive disorder or adjustment disorder as the case may be.”[28] (Emphasis added.)

71.  Mr Sean argues that the reference to the applicant’s mental disorder would have been understood by the jury as a direction to them to have regard to the psychiatric evidence.  

72.  Mr Sean submits that both the judge and the jury were clearly alive to the expert psychiatric evidence, and that the jury had been properly directed to consider all the evidence in deciding whether to accept the applicant’s account of the events, and whether the defence of provocation had been made out.  He submits that there was no room to suggest that the jury might have considered the expert evidence improperly.  He argues that the case of Lo Chun Siu was distinguishable as the judge did not direct the jury to ignore the psychiatric evidence.

Discussion

73.  In order to properly appreciate what is being complained about in the first ground of appeal it is necessary to have some understanding of the structure and flow of the judge’s summing-up.  In the early part of her summing-up the judge described the different types of evidence that had been presented to the jury, namely the different witnesses who gave oral evidence before them, the admitted facts, the exhibits and the transcripts of the applicant’s two video records of interview.  She then said she would direct the jury on how they should approach the expert evidence.  Of the four expert witnesses, two were psychiatrists, Dr Wong called by the defence and Dr Chan called by the prosecution.[29] She then directed the jury as follows:

“… it is important that you see this evidence in its proper perspective which is that it is before you as part of the evidence as a whole to assist you with regard to, for example, the cause of death of Madam Yeung and the nature of the injuries which may assist you in deciding the intent of the defendant at the material time, and also to assist you as to when the defendant killed Madam Yeung, whether he did so under an abnormality of mind and, if so, whether it substantially impaired his mental responsibility for that killing.”[30] (Emphasis added.)

74.  From this passage, it is apparent that on this first occasion that the judge mentioned the psychiatric evidence she confined it to the defence of diminished responsibility.  This narrow view of the relevance of the expert psychiatric evidence was a precursor to what was to come later in the summing-up when the judge directed the jury on the two defences of provocation and diminished responsibility.

75.  When the judge directed the jury on these two defences she gave them printed handouts of her directions in order to assist them.  No complaint is made in respect of the legal directions in the handouts or in the summing-up.  These directions follow a step by step approach to the issues the jury had to address.  The first step is as follows:

“1. Provocation has a special legal meaning, and you must consider it in the following way.

2. 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 another person rather than just by his own bad temper.”[31]

76.  This, of course, deals with the subjective aspect of provocation in respect of which all relevant evidence is admissible and any personal characteristic of a defendant which goes to whether he would lose his self-control is relevant and must be considered.

77.  There then followed comments by the judge listing out a number of incidents of provocative conduct, after which she added the words which are quoted in paragraph 69 of this judgment.  She made no mention of the psychiatric evidence.

78.  The judge then proceeded to the second step which is a direction to the jury to convict of murder, subject to the defence of diminished responsibility, if they were sure that the applicant was not provoked in the sense that she had explained.

79.  The judge then moved to the third step which is the objective aspect of the defence of provocation and requires the jury to form a view as to the gravity of the provocation and then decide whether “a person having ordinary powers of self-control would have done what the defendant did.”[32]

80.  In the ensuing paragraph of the handout, the judge explained to the jury what was meant by “a person having ordinary powers of self-control”, and in particular that such a person was to be vested with the special characteristics of the applicant as set out by her in her comments that are quoted at paragraph 70 of this judgment.

81.  The judge then went on to direct the jury on how the law expects people to exercise control over their emotions.  These directions were in accordance with the Specimen Direction[33].  After this paragraph, she gave an example of how a special characteristic of the applicant might be relevant to the issue of whether an ordinary person with this characteristic might be provoked to lose his self-control.  The characteristic the judge chose to illustrate the application of the principle was the applicant’s sexual inadequacy and the history of his marital breakdown due to his wife’s infidelity.  She said:

“If you think that the conduct would have been more provoking to a person who, like the defendant, was sexually inadequate and whose previous marriage ended because of the infidelity of the ex-wife then you must ask yourself whether an ordinary person with that characteristic/personal history might have been provoked to do as he did.”[34]

82.  The judge’s oral directions repeated what was contained in the typewritten handout.  The judge also gave directions on the “do as he did” issue and though she again directed the jury to have regard to other special characteristics of the applicant she did not elaborate on what these might be.

83.  This brought to an end her discussion of the defence of provocation.  It contained only one reference to the applicant’s psychiatric disorders as a special characteristic, that being her comment set out at paragraph 70 of this judgment, and no discussion of the psychiatric evidence whatsoever in the context of the defence of provocation.  When the psychiatric evidence was discussed by the judge, and directions were given in respect of it, it was solely in the context of the defence of diminished responsibility. 

84.  There was a clear failure by the judge to refer the jury to the psychiatric evidence in relation to the provocation defence and to explain to them how that evidence, subject to their findings in respect of it, could be relevant to their consideration of that defence.  No guidance or assistance of any kind was given to the jury on how the psychiatric evidence might assist them or be relevant in resolving the issues that arose for their determination in respect of the defence of provocation, specifically the issue of loss of self-control in respect of which the psychiatric evidence was highly relevant. 

85.  Mr Sean argues that the judge did not tell the jury to positively ignore the psychiatric evidence and other comments by her would have made them realise that it was evidence they had to consider when determining whether the defence of provocation had been rebutted by the prosecution.  He accepts that for the subjective issue of whether the applicant lost his self-control, this was not done, notwithstanding that on this issue the evidence of Dr Wong was highly relevant.  Mr Sean argues, however, that on the objective issue of whether a person having the ordinary powers of self-control would do as the applicant did, the judge did refer to the psychiatric evidence.  These directions of the judge are set out at paragraph 70 of this judgment. 

86.  I do not agree.  The approach that the judge took would have discouraged, not encouraged, the jury from having regard to the psychiatric evidence in relation to the defence of provocation.  Nor would anything said by the judge of a general nature have neutralised this discouraging effect of her remarks.  The comment by the judge on the subjective issue that is quoted at paragraph 69 of this judgement and on which Mr Sean relies would not, in our view, have directed the minds of the jury to the psychiatric evidence.  By this comment the judge was referring to factual matters personal to the applicant or relating to things said or done by or to the applicant or relating to his relationship with the deceased.

87.  In respect of the comment by the judge on the objective issue that is quoted at paragraph 70 of this judgment, Mr Sean’s argument ignores two key matters.  The first is that the directions on provocation were given to the jury as a series of steps they should take when considering the defence.  This format is designed to assist the jury, who have no legal expertise, by providing them with a more readily negotiable pathway through a complex legal issue.  When certain evidence is said to be relevant in one of the later steps of the defence it cannot be assumed that the jury would necessarily apply that evidence to one of the earlier steps in the defence. Overlapping with this is the second matter and that is that the jury are composed of lay persons who are being directed on complex legal issues in respect of which they are told they must abide by the directions of the judge. In this situation the jury is more likely to strictly apply what they are told to do in respect of each step of the approach.  Consequently, if they are not told to have regard to particular evidence for a particular step in the approach then there is a risk that they may disregard that evidence.

88.  In any event, it would not have been sufficient for the judge to set out only the legal elements of the defence of provocation and in respect of those elements to direct the jury to have regard to the psychiatric evidence without explaining to them how that evidence was relevant to those elements.  In order to ensure that the defence of provocation is fairly placed before the jury a judge must explain to the jury what evidence is relevant to the issues they have to decide when considering the defence and why and how it is, or could be, relevant to their determination of those issues. 

89.  In these circumstances it cannot be assumed that the jury would have had regard to the psychiatric evidence when considering the subjective issue of whether the applicant lost his self-control.

90.  I am satisfied that the failure of the judge to direct the jury on the relevance of the psychiatric evidence to this issue resulted in the defence of provocation not being fully and fairly placed before the jury.  Mr Sean argues that even if there was a misdirection or non-direction it was not material.  I cannot agree.  Here, the failure of the judge to direct the jury on the psychiatric evidence went to the heart of the subjective aspect of the defence, namely whether the applicant lost his self-control.  This court cannot know on what basis the jury found the defence not available to the applicant, and so I cannot say that the failure of the judge did not materially impact upon the verdict of the jury.

91.  Mr Sean does not ask us to apply the proviso and so it must follow that I would allow the appeal and quash the conviction for murder.

Retrial or substituted conviction for manslaughter

92.  Mr Sean indicates that in the event we allowed the appeal he would apply for a retrial.  At the hearing of the appeal we directed that both parties file with the court their submissions on this application and the alternative application by Mr Bruce that we should substitute a conviction for manslaughter and sentence the applicant for this lesser offence.  We also had the benefit of further oral submission at the resumed hearing of the appeal on 10 June 2020.

93.  I have had the benefit of reading the separate judgments of Macrae VP and Zervos JA on the issue of retrial.  For the reasons which follow I do not agree with them that the applicant should be ordered to undergo yet another trial. 

94.  The power to order a retrial is found in section 83E(1) of the Criminal Procedure Ordinance, Cap 221, which provides:

“(1) Where the Court of Appeal allows an appeal against conviction and it appears to the Court of Appeal that the interests of justice so require, it may order the appellant to be retried.”

95.  The power of the Court of Appeal to substitute a conviction for an offence other than the offence of which an appellant was convicted at trial is found in section 83A of the Criminal Procedure Ordinance, which provides:

“(1) This section applies on an appeal against conviction, where the appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of the other offence.

(2)  The Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence, and pass such sentence in substitution for the sentence passed at the trial as may be authorized by law for the other offence, not being a sentence of greater severity.”

96.  Section 83A was considered by the Court of Final Appeal in Hau Tung Ying & Anor v HKSAR[35].  Chan PJ, in giving the main judgment with which all members of the court agreed, said of the legal principles underlying the operation of section 83A:

“62. It is clear on a true construction of s.83A and from the authorities referred to in Spies v The Queen that in order to invoke s83A, two conditions have to be satisfied.

63. First, the substituted verdict must be one for an offence of which ‘the jury could on the indictment have found him (the accused) guilty’; that is to say, it must be for an offence which is open on the indictment. This is often the case where the substituted offence is laid as an alternative charge in the indictment or where there are alternatives available under the law to the convicted offence. Normally, these would be lesser offences, such as manslaughter in a case of murder or theft in a case of robbery, but that is not necessarily the case and would require consideration of the nature of both the convicted and substituted charges in question and the alleged facts sought to be proved in support of either charge …

64. The second condition is that it must be clear to the appellate court that “the jury must have been satisfied of facts which proved him (the accused) guilty of the other offence”. The court must be satisfied that the jury must have made a finding of the relevant facts. It is not sufficient that the court considers that the jury would have or might have been satisfied of the relevant facts. The court must also be satisfied that the facts found by the jury are facts which must be proved to support a conviction on the other charge.

…

67. To make a finding upon which an accused can be convicted there must be a factual and legal basis for such finding: it must be based on properly admitted evidence and upon a correct direction on the law. If there was no evidence to support the finding or the jury’s finding was based on inadmissible evidence, or they were misdirected on the law in respect of the substituted offence, the finding was simply not a proper finding of fact upon which the appellate court can convict. In such case, there is no room for the application of s.83A.

68. If the conditions in s.83A are met, the appellate court has a discretion whether to substitute a conviction on the other offence for the conviction on the offence which it has quashed.  This depends on the justice of the case, including on the one hand, the public interest in having a guilty person properly convicted and on the other hand, whether it is fair to the accused to convict him on the other offence.”

97.  In the present case, the offence of manslaughter is an offence of which the jury could on the indictment have found the applicant guilty, and it appears to me that the jury must have been satisfied of facts which proved the applicant guilty of manslaughter.  Thus, the two pre-conditions of section 83A are met.  Indeed, this power to substitute the conviction has been employed by the Court of Appeal over the years in respect of the offence of murder when it has concluded that it is not in the interests of justice to order a retrial.  Here, it would certainly not be unfair to the applicant to enter a conviction for manslaughter as he, in fact, pleaded guilty to this offence.  But, before having recourse to this power and entering a conviction for manslaughter, this court must first address the question of whether it is in the interests of justice to order a retrial.

98.  However, before embarking on a determination of this question it is first necessary for this court to satisfy itself that there is sufficient evidence to warrant the applicant being retried.  An order for retrial would never be made in respect of a defendant against whom it could not be said the evidence allowed of a reasonable prospect of conviction.  Here, there is no dispute that the applicant killed the deceased and the only issue is whether either of the defences of provocation or diminished responsibility is available to him so as to reduce his crime from murder to manslaughter.  Thus, this case is a suitable one for a retrial in that there is sufficient evidence on which a properly directed jury could return a verdict of guilty of murder.

99.  The next step is to consider whether the issues in the case are such that, absent other considerations, it would be more appropriate for those issues to be resolved by the verdict of the jury rather than by the Court of Appeal.  Here there can be no doubt that the issues are better resolved by the verdict of the jury.  I say that because that has been the consistent view of the appellate courts on the occasions that the applicant’s conviction has been quashed.  For example, the Court of Appeal when making the first order for retrial said:

“…We think the questions to be resolved are essentially apt for jury determination upon a proper presentation of the evidence and, accordingly, we order that the applicant be retried…”[36]

100.  In the second appeal the Court of Final Appeal was of a similar view, saying:

“127. This is not a case in which it would be appropriate to substitute a conviction of manslaughter, as was submitted on behalf of the appellant. This was the course adopted by the High Court of Australia in Johnson v The Queen. However, in the present case, where the issue of credibility of the facts on which the defence was based ought to have been left to the jury to determine, the only appropriate order on the quashing of the murder conviction is one of retrial.”[37]

101.  Thus, absent other considerations, the normal order for a case of this nature would be to order a retrial.  Consequently, the question in respect of this applicant is whether there are other considerations weighing against an order for retrial and whether their weight is such as to lead this court to the conclusion that an order for retrial is not in the interests of justice.

102.  Before answering this question it is helpful to remind ourselves of some of the legal principles underlying the exercise of the power of retrial.  The two obvious points to be made about this power is that it is discretionary and that the basis for exercising the discretion is the interests of justice.  Equally obvious is the fact that, it being a discretion with such a broad basis for its exercise, it will necessarily be fact sensitive and how it will be exercised will vary according to the circumstances of each case. 

103.  In Ting James Henry v HKSAR[38] the Court of Final Appeal cited with approval the comments by Lord Diplock in Au Pui Kuen v AG[39]:

“The discretion whether or not to exercise the power to order a new trial in any particular case is confided to the Court of Appeal of Hong Kong and not to their Lordships’ Board. To exercise it judicially may involve the court in considering and balancing a number of factors some of which may weigh in favour of a new trial and some may weigh against it. The interests of justice are not confined to the interests of the prosecutor and the accused in the particular case. They include the interests of the public in Hong Kong that those persons who are guilty of serious crimes should be brought to justice and should not escape it merely because of a technical blunder by the judge in the conduct of the trial or his summing-up to the jury.

It would not, in their Lordships’ view, be helpful to attempt a catalogue of the various factors which the Court of Appeal should take into consideration in determining how to exercise their discretion, still less to make any suggestion as to the relative weight to be given to them.  The factors that are relevant and their relative importance may vary greatly as between one case and another.  These are matters which call for the exercise of the collective sense of justice and common sense of the members of the Court of Appeal of Hong Kong…”

104.  In HKSAR v Zhou Limei (No 2)[40] the Court of Final Appeal again addressed the legal principles relating to the exercise of the discretion that is involved in deciding whether to order a retrial.  In Reasons for Judgment with which the other members of the court agreed, Chief Justice Ma said:

“... In HKSAR v Tam Ho Nam (No. 2), Fok PJ restated the relevant principles regarding retrials by reference to Au Pui Kuen v Attorney‑General of Hong Kong, Ting James Henry v HKSAR and Kissel v HKSAR. The following principles, distilled from the above and other cases, are relevant in the present case:-

(1) Whether or not a retrial should be ordered is a matter of discretion. This discretion is usually exercised, as it should be, by the Court of Appeal, relying on their ‘collective sense of justice and common sense.’ And, as was put by Lord Bingham of Cornhill, there must be ‘an informed and dispassionate assessment of how the interests of justice in the widest sense are best served’; it is important to maintain ‘confidence in the efficacy of the criminal justice system.’

(2) The discretion whether or not to order a retrial depends entirely on what justice requires (this being the ‘critical question’).

(3) The interests of justice of course include a consideration of an accused’s interests and circumstances. The criminal justice system is there to bring matters to a conclusion without undue delay and without oppression; these are ‘accepted norms’. It should be acknowledged that any criminal trial is to some degree an ordeal for the accused. The interests of justice also include the interest of the public in seeing those who are guilty of serious crimes brought to justice and not escape merely because of a technical error in the conduct of a trial or in the summing up to a jury. In Au Pui Kuen, Lord Diplock referred to the following passage from the judgment of Gould Ag CJ in Ng Yuk-kin v The Crown: that there may be cases where it ‘is in the interest of the public, the complainant, and the appellant himself that the question of guilt or otherwise be determined finally by the verdict of a jury, and not left as something which must remain undecided by reason of a defect in legal machinery’. In assessing the public interest, a court must take into account the views of the prosecution which is best qualified (and I would add has the duty) to present the views of the public, although it must ultimately be for the court to determine what is in the public interest. The strength of the prosecution case is also a relevant consideration.

(4) The interests of justice require all relevant factors, both for and against a retrial, to be taken into account. Such factors will not only vary from case to case, but their relative importance and weight will also be different in any given case.

(5) The above said, one factor that must be given significant weight is the fact that the accused has already undergone a trial, in particular where the trial is long and complex. This is all the more so when there is involved a second retrial, which means of course the possibility of a third trial for the same offence. In Mok Kin Kau, the ordering of a second retrial after 2 concluded trials and appeals, and the serving of the whole sentence, was said to be an ‘unusual course’ and in such a situation, in the absence of a special or compelling reason, this was a ‘departure from accepted norms’ sufficient to constitute a substantial and grave injustice. Although it is not unprecedented for a second retrial to be ordered, the cases accept that this is an ‘unusual’ course to take, even where the accused has not served the whole of his or her sentence as was the case in Mok Kin Kau. Given that the ordering of a second retrial is an unusual course, a court would have to be persuaded by cogent and compelling reasons to make such an order. This is consistent with the interests of justice, but of course all relevant factors must be carefully weighed in this exercise of discretion.

(6) Another factor that should also be taken into account is the time that an accused has spent in custody and in relation to this facet, the time that an accused has been in custody will have to be seen against the likely sentence that he or she might receive on a retrial.”[41]

105.  This appeal was from the Court of Appeal’s decision that the appellant be ordered to undergo a second retrial.  The appellant was facing a charge of trafficking in 0.8 kilogramme of heroin narcotic for which she had been sentenced to 21 years’ imprisonment.  The facts on which the prosecution was based revealed that the appellant’s case was a fairly standard airport drugs case with Customs officers discovering the heroin concealed in the appellant’s suitcase. There was little in dispute and the key issue was whether the appellant knew of the presence of the drugs in her suitcase. 

106.  The offence took place on 15 November 2012 and so by the time of the hearing of her appeal before the Court of Final Appeal on 27 April 2020 she had been in custody for some 7½ years.  The period spent in custody was a significant factor as it would likely become 8 years before any further trial took place and her 21-year sentence, when discounted for good behaviour, was, in reality, only a 14 year sentence. 

107.  Leave to appeal was granted on the basis that “it was reasonably arguable the Court of Appeal had been wrong in the exercise of its discretion by not sufficiently taking into account the undue hardship and unfairness allegedly occasioned to the [appellant] by the second retrial order, particularly given her psychiatric condition and the further deterioration of her condition said to have resulted from the order.”[42]

108.  In applying the legal principles to the facts of the appellant’s case, Ma CJ was of the view that the Court of Appeal was “in serious error in its treatment (or non-treatment) of the relevance of the appellant’s mental condition.”[43] Having so found, the court was free to consider afresh the exercise of the discretion whether or not to order a retrial.  In doing so, Ma CJ noted that as the prosecution was seeking a second retrial, “cogent and compelling reasons had to be advanced by it to justify this order.”[44] This, and the period of time already spent by the appellant in custody, provided “the relevant context in which to evaluate the other relevant factors in the exercise of discretion in the present case.”[45]

109.  The other relevant factors were the seriousness of the offence, the public interest in trying the appellant for it, the strength of the prosecution case (other than on the issue of knowledge) and the lack of credibility of the appellant’s explanation in denial of knowledge.  Although Ma CJ accepted that there was some force in all these points, he noted, in respect of the last point, that the verdicts were majority ones.

110.  Ma CJ then turned to the medical evidence, the importance of which he said lay in “putting into proper perspective and context the lengthy period that the appellant had already been in custody in the present cases.”[46] He then concluded:

“21.   Taking all the above considerations into account, I am of the view that it was clearly in the interests of justice not to order a second retrial for the appellant. Perhaps individually, each factor may not necessarily be sufficient but cumulatively it was compelling to call a halt to the proceedings in the present case. Insufficiently cogent or compelling reasons existed to justify an order for a second retrial.”

111.  The significant factors that weighed heavily in the exercise of discretion by the Court of Final Appeal were that this would be a second retrial (ie a third trial), the ordeal this would be for the appellant, especially the price it could exact on her mental health, and the period she had spent in custody since her arrest.  Even though the consequence of not ordering a retrial was that she would escape conviction, it could not be said that the appellant, given the period she had spent in custody, had gone unpunished. 

112.  A balanced approach to the exercise of the discretion that takes full account of the various matters that are encompassed by “the interests of justice” can be seen in the comments of Lord Bingham of Cornhill in the Privy Council decision of Bowe v R[47] which were adopted by the English Court of Appeal in R v Bell[48]as stating the principle which applies to the exercise of the power of retrial in England and Wales.  In Bowe, Lord Bingham was similarly concerned with whether to order a second retrial in respect of the offence of murder.  He said:

“There is plainly no rule of law in this country which forbids a prosecutor from seeking a second re-trial…there may of course be cases in which, on their particular facts, a second retrial may be oppressive and unjust…whether a second retrial should be permitted depends on an informed and dispassionate assessment of how the interests of justice in the widest sense are best served. Full account must be taken of the defendant’s interests…account must also be taken of the public interest in convicting the guilty, deterring violent crime and maintaining confidence in the efficacy of the criminal justice system.”[49]

113.  Although we have been referred to a number of different cases by the parties as illustrative examples of how the retrial power has been exercised, especially when the retrial being sought is of a defendant who has previously been retried, in my view these cases will necessarily be quite limited in their utility, as how the discretion is to be exercised in a particular case is highly fact-sensitive.  What was done in other cases cannot dictate what should be done in the present case. 

114.  That being said, certain factors will always be relevant as they are integral components of the interests of justice.  For example there is the public interest in seeing that those charged with serious offences have those charges properly determined in a court of law and, if convicted, properly punished for their wrongdoing.  This is always a very strong component of the interests of justice.  There is the interest of the victims of crime and those close to them who seek justice for the harm that has been done to them.  And there is of course the interests of the defendant who seeks fairness from the criminal justice process.  Within each of these components of the interests of justice there may be a variety of matters that need to be considered and weighed. 

115.  When considering the public interest of ensuring that those charged with serious crimes have their charges determined in a court of law and, if found guilty, are appropriately punished, it is important to note the consequence in the present case of not ordering a retrial.  Here, the consequence is not a complete acquittal, as it was in the Zhou Limei case, but rather a conviction for manslaughter which itself would attract a lengthy prison sentence; not necessarily as lengthy as life imprisonment, but a substantial period nonetheless.

116.  An alternative conviction for manslaughter, accompanied by a lengthy prison sentence would, in my view, go a significant part of the way in providing justice for this crime for those affected by it and in providing them with the closure for which they have waited so long.  It will also satisfy, admittedly in part only, but still significantly, the public interest in ensuring that serious crimes do not go unresolved by the courts and unpunished. 

117.  Another important feature of this case to which regard must be had is that if a retrial is ordered it would be the third retrial and the fourth trial.  This is a consequence of the procedural history of the case which is as follows:

Date of offence	12 September 2009
1st trial: (HCCC 97/2010)	Before Beeson J.  The applicant was convicted on 21 October 2010 and he appealed his conviction. On 30 October 2013 the Court of Appeal allowed his appeal and ordered a retrial (see [2014] 4 HKC 145).
1st retrial (2nd trial): (HCCC 457/2013)	Before V Bokhary J.  The applicant was convicted on 31 March 2014 and he appealed his conviction. His appeal was dismissed by the Court of Appeal on 30 June 2015 (CACC 131/2014) but allowed by the Court of Final Appeal on 7 February 2017 who ordered that the applicant be retried (see (2017) 20 HKCFAR 1).
2nd retrial (3rd trial): (HCCC 37/2017)	Before Anthea Pang J who declared a mistrial. Before M Poon J.  The applicant was convicted on 26 April 2018 and it is from this conviction that the present appeal flows.

118.  Thus, spanning a period of over eleven years since the killing, the applicant has had to endure three completed trials and multiple appeals, with one of the appeals not succeeding at the Court of Appeal level and only succeeding before the Court of Final Appeal.  All the appeals were allowed for legal reasons as a consequence of which it could not be said the applicant’s conviction was safe.  The reality of these successful appeals is that on three occasions, over this period of eleven years, our criminal justice process has not been able to afford the applicant a fair trial.  This raises squarely the issue of to what extent, if at all, the applicant personally, or through those acting for him, has contributed to this reality.

119.  I accept that the applicant, through his counsel, was partly responsible for the error in his first trial which caused the Court of Appeal to conclude his conviction was not safe.  In his first trial[50] impermissible hearsay evidence was adduced before the jury with the agreement of the applicant’s counsel.  However, the primary responsibility for this error must lie with the prosecutor for it was adduced by the prosecutor in support of the prosecution case.  What took place in that first trial was a positive action by prosecuting counsel which directly created the unfairness in the trial which subsequently became the reason for why the first appeal was allowed.  I regard the contribution of the applicant’s counsel to the quashing of the conviction in that first trial as a matter of little weight in the exercise of the discretion whether to now order a third retrial.

120.  Of greater concern to Zervos JA is what transpired in the current trial for in respect of this trial he concludes:

“This was a case where the circumstances which brought about the possibility of a retrial were, in no small measure, due to the conduct of the applicant or those acting for him.”[51]

Respectfully, I cannot agree with this conclusion.

121.  If I understand Zervos JA correctly the circumstances that are of concern to him in respect of the current trial are the reliance by the applicant, for the first time, on the defence of diminished responsibility and the psychiatric evidence adduced in support of it, and the conduct of Mr Bruce in advancing the defence case and, in particular, the way he responded to the judge when invited to comment on her draft jury directions. 

122.  It is true that in the first two trials only the defence of provocation was relied upon.  It was not until the third trial that diminished responsibility featured as a defence and that psychiatric evidence was adduced.  The psychiatric evidence, once obtained, was clearly highly relevant to both defences and it would have been professionally negligent of counsel not to advise the applicant to make use of it. 

123.  These two new elements of the defence case undoubtedly made the third trial more complicated but the fact that the applicant relied on an additional, new defence, and additional, new evidence, in my view, cannot, without more, make the applicant responsible in any way for subsequent erroneous directions by the judge in respect of this new defence or this new evidence. The applicant has a constitutional right to a fair trial and I do not see that in enjoying this right he is limited in the defences he may raise or when he may raise them.  If the defences are properly raised, then an element of his right to a fair trial is to have those defences correctly and fairly placed before the jury.  In my view, the fact that the defence is new and the fact that it was only relied on in a later retrial are not matters which, on their own, I would regard as relevant to the exercise of the discretion of whether to order a further retrial.  To hold otherwise, only undermines and dilutes the right to a fair trial.  I do not see that the applicant personally has done anything to bring about the possibility of a retrial.    

124.  In respect of the conduct of Mr Bruce, Zervos JA is particularly concerned that it may reflect a deliberate tactical choice by him in the conduct of the defence case.  I am not persuaded that the transcript supports such a conclusion.  I cannot see in this case, in contrast with what occurred in the first trial, any positive action by Mr Bruce or Mr Chau to persuade the judge to pursue a particular course and nothing was said or done by either counsel to mislead the judge.  I cannot see any basis for suggesting that Mr Bruce intentionally stood by and allowed the judge to fall into error.  Nor can I see how any tactical benefit would accrue to the applicant by not reminding the jury of the relevance of the psychiatric evidence to their decision on the issue of loss of control.  Indeed, quite the contrary.  It was positively adverse to the applicant and that is why we are allowing the appeal.  I cannot, therefore, agree that there is a basis for concluding that Mr Bruce deliberately pursued a tactical course in his conduct of the defence case which contributed to the error of the judge which lead to this appeal being allowed. 

125.  In my view, what happened was that Mr Bruce and Mr Chau were presented with draft jury directions prepared by the judge and invited to comment on them. In doing so, both Mr Bruce and Mr Chau failed to recognise the potential deficiency in them which became the applicant’s successful ground of appeal.  Their conduct, and each must be held equally responsible, were acts of omission, not acts of commission and that, it seems to me, is the extent of their responsibility.

126.  Their failure to raise the matter with the judge is regrettable. The judge was doing precisely what this court has, on innumerable occasions, encouraged trial judges to do, namely to discuss with trial counsel what legal directions need to be given and, where relevant, the content of those directions.  It may, perhaps, with the benefit of hindsight, have been better if counsel had been provided with more time to study them so that a more considered response could be elicited from them.  There was, after all, an abundance of time available.

127.  However, it is important to recognise that the deficiency in the written directions was only potential and not actual.  By this I mean that there was no error on the face of the directions in terms of their legal content.  There was only a potential deficiency in them in that they did not fully link the evidence to the legal issues that the jury had to decide.  It is apparent that the judge was of the view that the written directions were primarily for the law and that she would mention the evidence separately in her summing-up.  There is nothing unusual in a judge adopting such a course in respect of a typed handout to the jury as long as the judge at some stage in the summing-up tailors the legal directions to the evidence in the case.  This is important not only in order to place them in context but, by so doing, to make them more intelligible to the jury and easier for the jury to decide the complex legal issues requiring their determination.  The defences of provocation and diminished responsibility are prime examples of areas of the law where the legal directions need to be supplemented by a careful tailoring of the evidence to the legal issues the jury will have to address.

128.  As I have pointed out, it is not the written directions alone which are fatal to the safety of this conviction.  It is the summing-up as a whole, for what was absent from the written directions could have been cured by being included in the oral directions.  Although this court always expects counsel to listen closely to a judge’s summing-up and hopes that by so doing they will pick up any errors in it, I am not aware of any occasion where this court has held a defendant in any way responsible when his counsel has not met this expectation.  I see no reason in the present case to treat this applicant any differently.  If the applicant’s counsel’s fault is to be characterized as no more than a failure to detect a deficiency in the summing-up, and that is how I would characterize it, then I would not regard such a failure as relevant to the exercise by this court of its discretion of whether to order a retrial. 

129.  I accept that what transpired in the first and third trials is part of the procedural history of the case and that it forms a backdrop to the exercise of the discretion to order a retrial. But, as I have already indicated, I would not regard the applicant’s conduct in advancing a new defence and relying on new evidence as one of the circumstances which brought about the possibility of a retrial.  Nor am I persuaded that Mr Bruce’s conduct of the defence case was also such a circumstance.  I would not regard either of them as factors relevant to the exercise of the discretion of whether to order a retrial.

130.  The lapse of time and all that has occurred during it are, undoubtedly, factors militating against an order for retrial.  As courts have repeatedly emphasised, any trial is an ordeal for a defendant, more especially so where the outcome of the trial could result in the defendant spending the rest of his life in prison. 

131.  To put a defendant through a second trial is not at all unusual and the interests of justice will usually dictate that notwithstanding the additional ordeal imposed on the defendant by a second trial, it will be outweighed by the public interest in having serious crimes properly resolved and punished through the criminal justice system. 

132.  But our criminal justice system is distinguished by a number of features that reflect our values as a society.  One such feature is the presumption of innocence and another is that the trial process should be fair to the defendant.  This concept of fairness impacts not only on the admissibility of evidence and the processes of the trial, but even on whether a trial should take place at all.  Thus, in certain circumstances a stay application may be granted because it is unfair to try a defendant. 

133.  The more often the defendant has to face trial, the greater the ordeal will be for him, and the less fair the criminal justice process will be perceived to be.  With each additional retrial the process becomes more of an ordeal and a stage will be reached where the trial process will be regarded as being more than just an ordeal and as being unfairly oppressive to the defendant.

134.  In Mok Kin Kau v HKSAR[52] the issue of oppression to the applicant of having to undergo a third trial weighed heavily with the Court of Final Appeal but there was also present in that case the added element of the appellant having served the whole of his sentence.  Responding to these circumstances the court said:

“12. In the absence of a special and compelling reason for doing so, putting a person on trial for the third time after two concluded trials and appeals and after he has already served the whole of his sentence would be a departure from accepted norms to his disadvantage so serious as to constitute a substantial and grave injustice.”[53]

135.  Although the exercise of the discretion cannot be allowed to become an arbitrary exercise of saying more than three trials will never be allowed, there is no doubt that the case law reflects a view of common law courts that more than two trials is unusual and more than three trials is exceptional.  Here I am referring to completed trials where verdicts have been returned or, in the case of a mistrial, where the jury was unable to agree on a verdict.  The reason that the courts have tended to turn their face against a third or more trial is because requiring a defendant to endure such a prolonged exposure to the trial process is seen as likely to be oppressive to him.  But, for that factor to be weighed judicially, regard must be had to all the circumstances of the case and not just to the number of trials.  Nothing that I say in this judgment should be taken as indicating a view that a third retrial, being a fourth trial, can never be ordered because it would always be oppressive to a defendant.  Nevertheless, as Ma CJ said in Zhou Limei in respect of an application by the prosecution for a second retrial, “cogent and compelling reasons had to be advanced by it to justify this order.”[54] Even more cogent and compelling reasons will be needed to justify a third retrial.

136.  Another important consequence of this case’s procedural history is that there has been a lengthy delay in bringing about resolution of this crime through the criminal justice process.  This rubs against another important goal of the criminal justice process, namely finality. The longer that finality is delayed, the less justice there is seen to be in the process and public confidence in the process is undermined.  Finality, is, of course, also relevant to the interests of a defendant. Just as delay can lead to the criminal justice system being oppressive to a defendant, finality prevents that from happening by bringing an end to the criminal justice process in respect of the defendant’s crime. 

137.  Thus, the delay in the present case, impacts in two ways upon the consideration of whether a retrial should be ordered.  First, it impacts upon the question of whether it would be oppressive to the applicant to subject him to a further trial.  Secondly, it lends weight to the public interest factor of bringing finality to the criminal justice process in respect of this crime.  Consequently, even in the absence of any prejudice to a defendant in securing a fair trial, delay will still have very real importance as a factor to be weighed when determining where the interests of justice lie. 

138.  That it has this importance is reflected in what was said by the Court of Final Appeal in Mok Kin Kau.  In that case the court observed in respect of an appellant who was appealing an order of retrial which would have the consequence of him having to endure a third trial for an offence of assault occasioning actual bodily harm:

“10. Retrials have their place in our criminal justice system. But bringing matters to a conclusion without undue delay is an important feature of that system. So is the avoidance of oppression. These notions have shaped the accepted norms of our courts’ practice as to retrials.”[55]

139.  I turn now to whether there would, realistically, be difficulties in securing a fair trial for this applicant. In my view, the delay that has occurred in this case could have an impact on the fairness of the trial in so far as the nature of the defence requires that the defendant give evidence and when he does so he will have to recall what happened over 10 years ago.  Any inconsistency between what he now says and what he said in earlier trials will become fodder for an attack on his credibility.  This is not a small matter as it could impact in a potentially highly adverse way on the jury’s view of his evidence and this impact may not be amenable to being meaningfully countered by judicial direction.  Additionally, as Mr Bruce has demonstrated, the killing has consistently attracted media publicity whenever the applicant’s case has come before the courts.  This latter problem is yet another difficulty that will beset a further trial, and though not insurmountable, it is a matter which cannot be ignored.  I have no doubt that a fourth trial would not be without considerable difficulties. 

140.  I am not attracted by the argument that an important factor weighing heavily in favour of a retrial is the fact that there has been three verdicts of juries convicting the applicant of murder.  I say that because in each case the verdict of the jury was flawed and it cannot be known what the verdict might have been in each case had the jury been correctly directed on the evidence.  In my view, this is not a factor of great weight. 

141.  In answering the question of where the interests of justice lie in the present case it is helpful to give the question context and greater focus by re-drafting it as the question of whether the interests of justice require that the applicant be forced to endure a fourth trial so that a determination can be made as to whether he should be punished for murder, which carries a mandatory sentence of life imprisonment, or for manslaughter, for which, in all likelihood, he would be sentenced by this court to a fixed term of imprisonment.  Posing the question in this way gives emphasis to the reality that not ordering a retrial will not result in the applicant being acquitted or of escaping punishment.

142.  In respect of this applicant, after having regard to all the circumstances of this case and weighing all the competing factors, I am satisfied that the interests of justice do not require that he undergo a fourth trial.  In my view, the interests of justice can properly be met by this court exercising its power under section 83A of the Criminal Procedure Ordinance and substituting a verdict of manslaughter and by imposing on him a just sentence for this lesser offence.

143.  I am persuaded into adopting this course by the following factors:

(i)  on the assumption that the applicant was awarded a discount of one third for his offer to plead guilty to manslaughter[56] then the applicant has, in effect, already served a fixed term sentence of approximately 23 years’ imprisonment[57];

(ii)  the applicant has been forced to undergo the ordeal of three trials and multiple appeals over the course of eleven years and as a consequence a fourth trial to determine whether he is guilty of murder, as opposed to manslaughter, would be oppressive to him;

(iii)  there would be considerable difficulties in ensuring that a fourth trial would be a fair trial;

(iv)  a substituted verdict means that the applicant does not escape justice and does not go unpunished for his crime;

(v)  a substituted verdict will bring finality to the proceedings arising from this crime and this will provide additional benefits of:

     (a)  a saving to the public purse; and

     (b)  closure for the applicant and his family; and

(vi)  on a properly conducted retrial a verdict of manslaughter cannot be said to be an unlikely verdict as there was independent evidence of provocative conduct by the deceased and the murder was clearly committed in a frenzied state consistent with a loss of self-control.  I note that in R v Bell the English Court of Appeal said of a third trial for murder:

“The broad public interest in the administration of criminal justice leads us to the clear view that a second re-trial should be confined to the very small number of cases in which the jury is being invited to address a crime of extreme gravity which has undoubtedly occurred (as here) and in which the evidence that the defendant committed the crime (again, as here) on any fair minded objective judgment remains very powerful.”[58]

I am not persuaded that it can be said that on a fair minded objective judgment, the evidence “remains very powerful” for the return of a verdict of murder, as opposed to a verdict of manslaughter.

144.  Given that there was independent evidence of provocation and given that the jury had rejected the defence of diminished responsibility I would substitute for the verdict of the jury a conviction for manslaughter based on the defence of provocation.

Hon Zervos JA:

Introduction

145.  I have had the advantage of reading the judgment to be delivered by McWalters JA.  I agree with the conclusion he has reached in this appeal that there was a failure to direct the jury on the relevance of the psychiatric evidence in relation to the defence of provocation, and consequently the issue was not fully and fairly placed before the jury.  It was a material non-direction that warranted the quashing of the applicant’s conviction for murder.  However, it needs to be acknowledged that the judge’s directions on the defence of provocation were contained in a written outline to the jury which had been provided beforehand to counsel for comment.  Mr Bruce, SC, who represented the applicant at trial, raised no objection to the content of the judge’s directions.  In fact, the judge amended her directions to accord with Mr Bruce’s suggestion as to how the psychiatric evidence should be addressed in respect of the defence of provocation as set out in the written outline to the jury.  Prosecuting counsel agreed with Mr Bruce’s submissions to the judge and had nothing to add.[59] It also needs to be acknowledged that the very terms that the judge directed the jury on the elements of the defence of provocation were repeated by Mr Bruce in his closing address to the jury.[60]

146.  The position taken by the defence could very well have been a tactical decision in order to emphasise to the jury the alleged provocative behaviour of the deceased which they submitted led the applicant to lose his self-control.  Obviously, the applicant’s state of mind as supported by medical evidence was a relevant consideration, and whilst it was not mentioned in relation to the first limb, it was mentioned in relation to the second limb, as well as being extensively referred to by the judge in her summary of the evidence and in her explanation of the partial defence of diminished responsibility.  When queried about the matter in oral submissions before us, Mr Bruce was unclear as to the position he took at trial in relation to the first limb of provocation, except to maintain that the judge should have made reference to the applicant’s mental condition (as found by the jury) under this limb.

147.  In the circumstances, it is appropriate to describe the failure by the judge to address the medical evidence under the first limb of the defence of provocation as a technical error. 

148.  In quashing the applicant’s conviction for murder, I am unable to agree with McWalters JA’s conclusion on the issue of retrial.  In the unusual and rare circumstances of this case, I would order that the applicant be retried for the offence of murder for the following reasons.

The power to order a retrial

149.  Where the Court of Appeal allows an appeal and quashes a conviction, it has the power to order a retrial.  This is provided for by section 83E of the Criminal Procedure Ordinance, Cap 221, which reads:

“(1) Where the court of appeal allows an appeal against conviction and it appears to the Court of Appeal that the interests of justice so require, it may order the appellant to be retried.

(2) A person shall not under this section be ordered to be retried for any offence other than –

(a) the offence of which he was convicted at the original trial and in respect of which his appeal is allowed as mentioned in subsection (1);

(b) an offence of which he could have been convicted at the original trial on an indictment for the first-mentioned offence; or

(c)   an offence charged in an alternative count of the indictment in respect of which the jury were discharge from giving a verdict in consequence of convicting him of the first-mentioned offence.”

150.  The power to order a retrial by the Court of Appeal is a matter of discretion to be exercised judicially and where “the interests of justice” so require.  What is meant by the “interests of justice” in the context of ordering the retrial of an accused has been the subject of judicial commentary both here and abroad. 

151.  In Au Pui Kuen v Attorney General [1979] HKLR 16, Lord Diplock, giving the opinion of the Privy Council, reviewed the Court of Appeal of Hong Kong’s discretionary power to order a retrial.  At the outset of his judgment, Lord Diplock observed:

“The power to order a new trial must always be exercised judicially. Any criminal trial is to some degree an ordeal for the accused; it goes without saying that no judge exercising its discretion judicially would require a person who has undergone this ordeal once to endure it for a second time unless the interests of justice required it.”[61]

152.  Lord Diplock went on to discuss the concept of “the interests of justice” in the context of this provision and the approach that should be taken by the Court of Appeal.  He said:

“The discretion whether or not to exercise the power to order a new trial in any particular case is confided to the Court of Appeal of Hong Kong and not to their Lordships’ Board. To exercise it judicially may involve the court in considering and balancing a number of factors some of which may weigh in favour of a new trial and some may weigh against it. The interests of justice are not confined to the interests of the prosecutor and the accused in the particular case. They include the interests of the public in Hong Kong that those persons who are guilty of serious crimes should be brought to justice and should not escape it merely because of a technical blunder by the judge in the conduct of the trial or his summing-up to the jury.

It would not, in their Lordship’s view, be helpful to attempt a catalogue of the various factors which the Court of Appeal should take into consideration in determining how to exercise the discretion, still less to make any suggestion as to the relative weight to be given to them. The factors that are relevant and their relative importance may vary greatly as between one case and another. These are matters which call for the exercise of the collective sense of justice and common sense of the members of the Court of Appeal of Hong Kong, who are familiar, as their Lordships are not, with local conditions. Their Lordships would not interfere with the court’s exercise of its discretion in such a matter unless they were satisfied that it must have reached its decision as to whether or not to order a new trial by taking into consideration matters to which it ought not to have had regard or by failing to take into consideration matters to which it should have had regard, and that in consequence a substantial injustice had been done.”[62]

153.  At about the same time as Lord Diplock gave his opinion in Au Pui Kuen, he addressed the same issue in Dennis Reid v The Queen [1980] AC 343.  In giving the opinion of the Privy Council, he reviewed the Jamaican Court of Appeal’s discretionary power to order a retrial, which is in similar terms to the equivalent provision in Hong Kong.[63] He repeated and applied the comments he made in the quoted passage from Au Pui Kuen.[64] He noted in that case the verdict of the jury had been set aside because of the inadequacy of the prosecution’s evidence and he considered this was a conclusive factor against ordering a new trial.[65] He explained that the interest of justice that is served by the power to order a new trial is the interest of the public in Jamaica that those persons who are guilty of serious crimes should be brought to justice, and not escape it merely because of some technical blunder by the judge in the conduct of the trial or in his summing-up to the jury.  He went on to discuss the two extremes of where the prosecution evidence was insufficient on the one hand or strong on the other in proving the case against the accused.  He said:

“… Save in circumstances so exceptional that their Lordships cannot readily envisage them it ought not to be exercised where, as in the instant case, a reason for setting aside the verdict is that the evidence adduced at the trial was insufficient to justify a conviction by a reasonable jury even if properly directed. It is not in the interests of justice as administered under the common law system of criminal procedure that the prosecution should be given another chance to cure evidential deficiencies in its case against the defendant. At the other extreme, where the evidence against the defendant at the trial was so strong that any reasonable jury if properly directed would have convicted the defendant, prima facie the more appropriate course is to apply the proviso … and dismiss the appeal instead of incurring the expense and inconvenience to witnesses and jurors which would be involved in another trial.”[66]

154.  In discussing cases that fell between these two ends of the spectrum, Lord Diplock identified considerations that may be relevant in deciding whether to make an order for a retrial. He said:

“ In cases which fall between these two extremes there may be many factors deserving of consideration, some operating against and some in favour of the exercise of the power. The seriousness or otherwise of the offence must always be a relevant factor: so may its prevalence; and where the previous trial was prolonged and complex, the expense and the length of time for which the court and jury would be involved in a fresh hearing may also be relevant considerations. So too is the consideration that any criminal trial is to some extent an ordeal for the defendant, which the defendant ought not to be condemned to undergo for a second time through no fault of his own unless the interests of justice require that he should do so. The length of time that will have elapsed between the offence and the new trial if one be ordered may vary in importance from case to case, though having regard to the onus of proof which lies upon the prosecution lapse of time may tend to operate to its disadvantage rather than to that of the defendant. Nevertheless there may be cases where evidence which tended to support the defence at the first trial would not be available at the new trial and, if this were so, it would be a powerful factor against ordering a new trial.

The strength of the case presented by the prosecution at the previous trial is always one of the factors to be taken into consideration but, except in the two extreme cases that have been referred to, the weight to be attached to this factor may vary widely from case to case according to the nature of the crime, the particular circumstances in which it was committed and the current state of public opinion in Jamaica. On the one hand there may well be cases where despite a near certainty that upon a second trial the defendant would be convicted the countervailing reasons are strong enough to justify refraining from that course. On the other hand it is not necessarily a condition precedent to the ordering of a new trial that the Court of Appeal should be satisfied of the probability that it will result in a conviction. There may be cases where, even though the Court of Appeal considers that upon a fresh trial an acquittal is on balance more likely than a conviction,

‘It is in the interest of the public, the complainant, and the [defendant] himself that the question of guilt or otherwise be determined finally by the verdict of a jury, and not left as something which must remain undecided by reason of a defect in legal machinery.’

This was said by the Full Court of Hong Kong when ordering a new trial in Ng Yuk-kin v. The Crown (1955) 39 H.K.L.R. 49, 60. That was a case of rape, but in their Lordships’ view it states a consideration that may be of wider application than to that crime alone.”[67] (Emphasis added)

155.  Lord Diplock listed a number of important considerations when addressing this issue, including that a criminal trial is to some extent an ordeal for the defendant, which he ought not to be condemned to undergo for a second time “through no fault of his own” unless the interests of justice require that he do so.  In R v Lazarus [2017] NSWCCA 279, 270 A Crim R 378, the New South Wales Court of Criminal Appeal recognised the relevance of this particular factor in deciding against a retrial by noting that “the circumstances which bring about the possibility of a retrial are not the fault of the respondent, or those acting for him.”[68] It should be mentioned at this stage that this consideration is of particular relevance in the present case, bearing in mind the history of the proceedings.

156.  It is quite clear that Lord Diplock in his two judgments was making the point that the factors to be taken into account in the exercise of this discretion may vary from case to case, from place to place, and from time to time.  It has to be acknowledged that there has been heightened public concern that offenders of serious crime, particularly cases of domestic violence, resulting in serious injury or death, and other cases, involving sexual violence or high levels of corruption, should be brought to justice and should not escape a proper conviction merely because of a technical blunder in the trial process.

157.  The concept of “the interests of justice” is very broad and includes a variety of factors relating to the administration of justice and the public interest.  Although it needs to be emphasised, as aptly stated by Lord Diplock, that the interests of justice are not confined to the interests of the prosecutor and the accused in the particular case but also include the interests of the public that those persons who are guilty of serious crimes should be brought to justice, and should not escape it merely because of a technical error.

158.  Mortimer JA, giving the judgment of the Court of Appeal, in R v Holgate (No 2) [1996] 3 HKC 324, explained the approach to be taken and the factors to be considered by the court when exercising its discretion to order a retrial.  He said:

“On an application for a retrial, it is necessary for the court to consider all the surrounding circumstances. These include the seriousness of the offence, the history of the proceedings, the evidence for both prosecution and defence, the complexity or otherwise of the trial, the reasons for the success of the appeal, the lapse of time since the alleged offence and since the trial and the length of the sentence which the appellant may have served.

It is necessary to then weigh the public interest in ensuring that those guilty of serious crime are brought to justice and punished against the effects of putting a successful appellant through the ordeal of a further trial. Obviously, if after all these matters have been considered, no reasonable prospect of a conviction after a new trial is demonstrated, one would not be ordered.”[69]

159.  In Ting James Henry v HKSAR (2007) 10 HKCFAR 632, the Court of Final Appeal held that the critical question when considering a retrial is, in the language of section 83E(1), what justice requires.  Lord Woolf NPJ, giving the judgment of the court, after citing with approval Lord Diplock’s guidance in Au Pui Kuen on what the “interests of justice” require, went on to discuss the proper approach in deciding whether a retrial should be ordered. He said:

“50. …A factor that has to be given the greatest weight in determining any application for a retrial is the fact that the defendant has already undergone one trial. This is of particular significance where the trial was long and complex as in this case.

51.  What I just said does not mean that this Court does not have regard to the views of the prosecution.  The prosecution is entitled to have weight attached to its view because not only is it the prosecuting authority, but also in adversarial proceedings, it is best qualified to present the views of the public to which importance has to be attached when determining what justice requires.  It can be contrary to the interests of justice if the public feel enraged or even disquieted at the fact that a defendant, who may have committed a serious offence, apparently escapes the normal consequences of his crime because a failure in the trial process has resulted in his conviction being set aside.  This could certainly be said to be the position in the present appeal.  If the prosecution had advanced the case at trial in the limited manner in which it is now proposed, the problems that have occurred may well have been avoided.”

160.  After alluding to the fact the prosecution had changed its case to patch it up, Lord Woolf, then emphasised that it would be wrong to attach excessive significance to this aspect on the application for a retrial, and highlighted the following considerations: (i) the nature of the case involving allegations of dishonesty in a case of company fraud, where the dishonesty perpetrated by the appellant, a person of previous good character, fell short of establishing that his dishonesty was responsible for the collapse of the group of companies; (ii) the appellant’s entitlement to credit for time served, which would not be great after a retrial; (iii) the length of a retrial and the considerable expense involved; and (iv) the lapse of time since the alleged offence committed in 1999 and the difficulty of investigating the financial state of an entity relevant to the case, which would cause significant prejudice to the appellant.[70]

161.  A matter of some significance is that Lord Woolf mentioned in his judgment that he had taken into account “the very valuable guidance” of the judgments in the High Court of Australia case of R v Taufahema (2007) 234 ALR 1.  This and other decisions provide useful guidance on the exercise of the power to order a retrial.

162.  In HKSAR v Li Yanhong (No 2) [2016] 1 HKLRD 946, Poon J (as Poon CJHC then was), in giving the judgment of the Court of Appeal, summarised the relevant legal principles as set out in Holgate and Ting James Henry, and laid out the following approach that a court should take when deciding whether to order a retrial:

“8. In examining whether the interests of justice so require, it is necessary for the court to consider the actual circumstances of the case as well as all the relevant factors, including the seriousness of the offence, the history of the proceedings, the evidence for both prosecution and defence, the complexity or otherwise of the trial, the reasons for the success of the appeal, the lapse of time since the alleged offence and since the trial and the length of the sentence which the appellant may have served. Then it is necessary for the court to weigh the public interest in ensuring that those guilty of serious crimes are brought to justice against the effects of putting a successful appellant through the ordeal of a retrial …”

163.  An issue that sometimes comes up when deciding whether to order a retrial, which is particularly relevant in this case, is the number of times an accused has previously faced trial in relation to the offence charged.  Whilst judicial comments have questioned whether it is appropriate to require an accused to undergo the ordeal of a trial for a second or third time, or even more, it will at the end of the day depend on what the interests of justice dictate.

164.  In Mok Kin Kau v HKSAR (2008) 11 HKCFAR 1, the Court of Final Appeal addressed whether it was appropriate for a judge to order a third trial in relation to a magistrate’s case, in which the appellant was alleged to have assaulted a domestic helper in his employ.  After referring to the judge’s reasoning in ordering a third trial, Bokhary PJ (as he then was), giving the judgment of the court, went on to discuss the legal principles and their application to the relevant circumstances of that case.  He said:

“7. Lord Diplock took a different approach in delivering the advice of the Privy Council in Reid v R [1980] AC 343. So did Rhind J in deciding R v Chau Mei Ling [1981] HKC 542, an appeal from a magistrate. In Reid’s case Lord Diplock pointed out (at p.350C) that ‘any criminal trial is to some extent an ordeal for the defendant, which the defendant is not to be condemned to undergo for a second time through no fault of his own unless the interests of justice require that he should do so.’ And in Chau Mei Ling’s case Rhind J, declining to order a third trial, said (at p.545B-C) that ‘e[ven] for an offence as serious as murder, it would be unusual to order an accused to stand trial as many as three times’. Of course whether the interests of justice require another trial depends on all the circumstances of the case, and so does whether an unusual course is warranted.

…

10. Retrials have their place in our criminal justice system. But bringing matters to a conclusion without undue delay is an important feature of that system. So is the avoidance of oppression. These notions have shaped the accepted norms of our courts’ practice as to retrials.

11. Sometimes a trial is resumed after being aborted, e.g. where the jury has to be discharged because a witness blurted out something incurably prejudicial. Depending on the circumstances, several resumptions may well have proved necessary and be warranted. We are not concerned with that sort of situation in this case.

12. In the absence of a special and compelling reason for doing so, putting a person on trial for the third time after two concluded trials and appeals and after he has already served the whole of his sentence would be a departure from accepted norms to his disadvantage so serious as to constitute a substantial and grave injustice.”

165.  Bokhary PJ explained that it was necessary to examine all the circumstances in order to determine if the interests of justice were “so compelling” that they require the unusual course of a third trial after two concluded trials and appeals, and the serving of the whole sentence.[71] It was held that in such circumstances a third trial would be a departure from the accepted norms of the courts’ practice as to retrials and the order for retrial should be set aside on the ground that it constituted a substantial and grave injustice. 

166.  The Court of Final Appeal revisited the issue of the power to order a retrial in HKSAR v Tam Ho Nam (No 2) (2017) 20 HKCFAR 414.  As a result of the Court of Final Appeal’s decision in the present case where the phrase “do as he did” in the statutory defence of provocation was correctly defined, the appellant’s conviction for murder was quashed and a retrial was ordered.  It was alleged against the appellant that, in April 2009, he killed his girlfriend by repeatedly striking her with a chopper and inflicting at least 50 cut wounds to her.  In his defence, the appellant claimed that he was provoked to lose his self-control during a quarrel with his girlfriend over whether she was having an affair with his brother.  An application for retrial was resisted on the basis it would mean a third trial for the appellant, resulting in considerable delay in prosecuting the trial during which period the appellant would be remanded in custody.  Fok PJ, giving the judgment of the court, explained they were satisfied it would be in the interests of justice to order a retrial in the present case.  He said:

“24. ... The charge of murder that the appellant will face is a very serious one and the interests of justice include the interests of the victim’s family and, more widely, the interests of the public in Hong Kong that persons guilty of serious crimes should be brought to justice and should not escape it merely because a judge is subsequently found to have misdirected the jury on a point of law.[72] The questions to be addressed in evaluating the defence of provocation are pre-eminently ones for a jury and it would be preferable for a jury to determine if the appellant’s conviction for killing Lau should be for murder or the lesser crime of manslaughter by reason of provocation. Whilst a third trial on any criminal charge must be an unusual course,[73] it is by no means unprecedented.[74] Since the appellant was sentenced to imprisonment for life, this is not a case where he has already served the whole of his sentence as was the case in Mok Kin Kau v HKSAR, where that factor weighed against further retrial.[75] Nor is a retrial of the appellant likely to be lengthy or particularly complex.[76]

25. Although by the time of any retrial there will certainly have been a considerable period of time since the killing, that delay has fortuitously worked to the appellant’s advantage in that, but for the hiatus during which he was seeking legal aid (referred to at [9] above), he would not have been able to rely on this Court’s decision in Liang Yaoqiang. That is the only basis on which his appeal against conviction for murder has been allowed, since the ground of appeal for which legal aid was eventually granted was determined not to be reasonably arguable. Any difficulties the appellant may have in recalling the events in question or his previous testimony can be mitigated, at least in part, by reference to his police interviews and transcripts of his evidence at his earlier trials. And the Trial Judge can, if it appears appropriate to do so, direct the jury to make due allowance in the appellant’s favour for the fact that he has to cast his mind back to events which took place a very long time ago. Furthermore, this is not a case in which it has been suggested that the passage of time has resulted in any specific problem for a retrial, such as a relevant witness not being available. In these circumstances, the delay, whilst doubtless a relevant consideration, is not one which persuaded us to exercise our discretion against an order for a retrial.” (Citations added)

167.  In the recent case of HKSAR v Zhou Limei (No 2), (2020) 23 HKCFAR 169, Chief Justice Ma, with whom the other judges agreed, distilled the following principles regarding retrials from the authorities cited:

“(1) Whether or not a retrial should be ordered is a matter of discretion. This discretion is usually exercised, as it should be, by the Court of Appeal, relying on their ‘collective sense of justice and common sense.’[77] And, as was put by Lord Bingham of Cornhill, there must be ‘an informed and dispassionate assessment of how the interests of justice in the widest sense are best served’; it is important to maintain ‘confidence in the efficacy of the criminal justice system.’[78]

(2) The discretion whether or not to order a retrial depends entirely on what justice requires (this being the ‘critical question’[79]).

(3) The interests of justice of course include a consideration of an accused’s interests and circumstances. The criminal justice system is there to bring matters to a conclusion without undue delay and without oppression; these are ‘accepted norms’[80] It should be acknowledged that any criminal trial is to some degree an ordeal for the accused.[81] The interests of justice also include the interest of the public in seeing those who are guilty of serious crimes brought to justice and not escape merely because of a technical error in the conduct of a trial or in the summing up to a jury.[82] In Au Pui Kuen,[83] Lord Diplock referred to the following passage from the judgment of Gould Ag CJ in Ng Yuk-kin v The Crown:[84] that there may be cases where it ‘is in the interest of the public, the complainant, and the appellant himself that the question of guilt or otherwise be determined finally by the verdict of a jury, and not left as something which must remain undecided by reason of a defect in legal machinery’. In assessing the public interest, a court must take into account the views of the prosecution which is best qualified (and I would add has the duty) to present the views of the public,[85] although it must ultimately be for the court to determine what is in the public interest. The strength of the prosecution case is also a relevant consideration.

(4) The interests of justice require all relevant factors, both for and against a retrial, to be taken into account. Such factors will not only vary from case to case, but their relative importance and weight will also be different in any given case.[86]

(5) The above said, one factor that must be given significant weight is the fact that the accused has already undergone a trial, in particular where the trial is long and complex.[87] This is all the more so when there is involved a second retrial, which means of course the possibility of a third trial for the same offence. In Mok Kin Kau,[88] the ordering of a second retrial after 2 concluded trials and appeals, and the serving of the whole sentence, was said to be an ‘unusual course’ and in such a situation, in the absence of a special or compelling reason, this was a ‘departure from accepted norms’ sufficient to constitute a substantial and grave injustice. Although it is not unprecedented for a second retrial to be ordered, the cases accept that this is an ‘unusual’ course to take,[89] even where the accused has not served the whole of his or her sentence as was the case in Mok Kin Kau. Given that the ordering of a second retrial is an unusual course, a court would have to be persuaded by cogent and compelling reasons to make such an order. This is consistent with the interests of justice, but of course all relevant factors must be carefully weighed in this exercise of discretion.

(6) Another factor that should also be taken into account is the time that an accused has spent in custody and in relation to this facet, the time that an accused has been in custody will have to be seen against the likely sentence that he or she might receive on a retrial.[90]” [91] (Citations added)

168.  The Chief Justice went on to emphasise that the Court of Final Appeal would only disturb the exercise of discretion by the Court of Appeal in the determination whether or not to order a retrial if there has been a serious error of law or principle or approach, such as where the court has failed take into account a relevant consideration or has taken into account an irrelevant one.  He added that the relative weight which the Court of Appeal ascribes to each relevant factor is a matter within its discretion and it is not open to the Court of Final Appeal to seek to ascribe a different weight.[92]

169.  In applying these principles to the circumstances of that case, the Chief Justice was of the view that the Court of Appeal was “in serious error in its treatment (or non-treatment) of the appellant’s mental condition.”  He explained it was a factor that had to be taken into account particularly in the context of the time the appellant had been in custody.[93] In deciding the question of a retrial, the Chief Justice referred, inter alia, to the psychiatric evidence concerning the appellant’s mental health and her ability to defend herself at trial.  He was of the view that whilst these factors individually were not sufficient, “cumulatively it was compelling to call a halt to the proceedings in the present case.”[94]

170.  From this review of the relevant principles regarding retrials, the critical question is what justice requires and “this may involve balancing a number of competing factors some weighing for, and some against, a retrial.”[95] This will necessarily be a case and fact sensitive matter. 

171.  It is clear from the authorities that the exercise of the court’s discretion to order a retrial involves a two-stage analysis in which the court must ask itself the following:

(1)  Is the available evidence sufficient to support a conviction of the accused for the offence charged if retried?

(2)  If it does, do the interests of justice support a retrial?

172.  The first stage involves an assessment of the evidence and operates as a preliminary hurdle to ensure that where the evidence adduced at the previous trial does not, and cannot as a matter of law, prove the offence charged against the accused, then no retrial can be ordered.[96] This is usually satisfied quite easily in most cases.

173.  The second stage requires, however, a more nuanced analysis to determine where the interests of justice lie by balancing a number of factors relating to the individual accused against the public interest in the proper administration of justice.  The following is a list of factors that courts have considered when determining where the balance lies on the issue of retrial.[97] None of these factors are on their own decisive, and nor are they meant to be exhaustive:

(1)  the public interest in the prosecution and conviction of offenders (Au Pui Kuen, at 21; Reid at 349; Zhou Limei (No 2) at [9(3)]);

(2)  the nature and seriousness of the alleged crime or crimes (Au Pui Kuen at 20; Reid at 350; Holgate (No 2) at 325I);

(3)  whether the prosecution’s case is strong (Au Pui Kuen at 21);

(4)  the history of the proceedings and the reason for the success of the appeal (Holgate (No 2) at 325I-326A; Mok Kin Kau at [11]);

(5)  the desirability of having the accused’s guilt determined by a jury, which is the most appropriate body to make such a decision (Reid at 350; Tam Ho Nam (No 2) at [24]);

(6)  the length of time between the alleged offence and the new trial, and whether such delay will prejudice the accused (Holgate (No 2) at 326A; Taufahema at [55]);

(7)  whether granting a retrial would allow the prosecution to patch up and supplement a defective case, or present a substantially different case to that presented to the jury in the previous trial (Reid at 350; Ting James Henry at [51] and [52]; Taufahema at [59]);

(8)  the number of times the accused has previously faced trial, and whether it would be unduly oppressive to subject him to the significant ordeal of another trial (Au Pu Kuen at 19; Reid at 350; Zhou Limei (No 2) at [9(5)]);

(9)  whether the accused has already served a significant part of the sentence imposed upon conviction (Holgate (No 2) at 326A; Zhou Limei (No 2) at [9(6)]);

(10)  the mental condition of the accused, if relevant, in the context of the time already spent in custody and having to face a further trial (Zhou Limei (No 2) at [14]);

(11)  the length and complexity of a further trial (Reid at 350; Tam Ho Nam (No 2) at [24]);

(12)  whether the circumstances which brought about the possibility of a retrial is not the fault of the defendant, or those acting for him (Reid at 350; Lazarus at [161]).

The facts of the case at trial

174.  With this review of the principles and factors listed in mind, I turn to address the issue of a retrial of the present case.

175.  There was no dispute that the applicant killed the deceased at around 6 or 7 am on 12 September 2009, in the flat where they cohabited, by chopping her with a knife approximately 213 times.  The deceased had died as a result of multiple wounds and there were signs of asphyxiation.[98]

176.  The applicant and the deceased had been in a long-term relationship that deteriorated markedly in the period leading up to the killing of the deceased. The applicant suspected for some time that the deceased was having a relationship with another man and his suspicion proved to be correct.  This was the cause of arguments between them, particularly on 11 September 2009. 

177.  After killing the deceased, the applicant fled Hong Kong and went to mainland China.  He was arrested on 13 September 2009, when he returned to Hong Kong.[99] He admitted killing the deceased to the police.  He said under caution:

“The person was killed by me. It was she who made me like this out of anger. She remained to be like that, no matter what was said.”[100]

178.  The applicant later took part in two video records of interview, which in the previous trials had been admitted into evidence without challenge from the applicant.  He mentioned that he suspected that the deceased was having an affair, and on 11 September 2009 he found a used condom in the rubbish bin between the 2^nd and 3^rd floors of the building where they lived.  He confronted the deceased about it as he was anxious to discover the identity of the other man, but she denied she was having an affair.  He said he wanted to look at her telephone but she would not allow him and a quarrel ensued, during which he slapped the deceased several times.  He said that he went to the kitchen where he consumed some rice wine.  However, the deceased taunted him by saying that “she liked to be pregnant”, and this angered him.[101] He then got hold of a knife and chopped her. He chopped her hand which she used to fend him off, but he kept chopping her to the head and thigh.  She rolled onto the bed and then fell to the floor.  He chopped her 10-odd to 20 times.  He said after chopping her a few times he offered to take her to hospital but she refused.  He said she was “sharp tongued” and that he pressed against her to prevent her from crying out.  He said that she was still moving and talking before he gave her the final two chops.  He said that in a rage he chopped her to death because she was unfaithful, lying and refused to tell him the identity of the other man.  He said after he chopped her, he took a shower and later left.[102]

179.  The applicant testified at trial and gave a more detailed account about his background and relationship with the deceased and what took place prior to and on the day of the killing.[103] The deceased worked at a 7-Eleven store, while the applicant looked after the home.  He said their relationship had deteriorated from August 2009, and he suspected she was having an affair with another man. 

180.  The applicant said that he tried to locate her on 11 September 2019, having suspected that she had sexual relations with a man at their flat. He said that he called the deceased at around 6 pm and confronted her about the condom that he had found.  She denied that any man had been in the flat and taunted him about him becoming a garbage collector.  He contacted her ex-husband to find out if she was with him, but she was not.  He made further calls to the deceased and learned that she was in Mongkok.  He went to Mongkok but he could not locate her.  He then returned to their flat.

181.  The deceased arrived at the flat after midnight, smelling of alcohol and in a high mood.  She taunted him about looking forlorn.  He confronted her about the condom that he had found, but she denied having a lover.  The situation calmed down and the deceased took a shower.  He took this opportunity to check her mobile telephone and found that all her records and messages had been deleted.  He said after the deceased had showered, she initiated sexual intercourse with him.  The autopsy of the deceased revealed that the applicant’s semen was present in her vagina.

182.  The applicant asked the deceased again about the condom, and begged her to explain.  However, she was unresponsive and he felt “too stressful”.[104] He then left the flat and went out into the street.  He called her from the street in order to ask her to throw his wallet to him as he had left it behind and wanted to buy some food.  The call is recorded as having taken place at 2.04 am.  The deceased refused to throw down his wallet, so he returned to the flat where he found her on the telephone.  She put the telephone down and threatened to kill his parents if he should leave again.  He then went to the kitchen and drank some rice wine to calm himself down. 

183.  There were further arguments between them and the deceased taunted the applicant by comparing him to her ex-husband and boyfriend, saying that both were more accommodating than him.  She also said that all the men she had known were more capable than him, and on hearing this he felt “faceless”.[105] She continued to taunt him about his sexual performance, saying that she would like to be pregnant by another man, and even hit him on his shoulder twice with a telephone.

184.  The applicant said that this led him to make three attempts to jump out of the window but he was restrained by the deceased.  This occurred sometime between 5 and 6 am.  The deceased then called her ex-husband telling him that the applicant had gone crazy and that she was scared.  At one point, the applicant took the telephone from her and apologised to her ex-husband.  The call took place at 5.40 am.

185.  After the call, the applicant again raised the matter of the used condom with the deceased.  He said that she thrusted it twice into his face, near his mouth, asking him to eat it so that he would stop asking her.  He felt insulted and degraded.  He slapped her twice and grabbed her neck to stop her from talking.  However, he let her go when she shouted for help.  He said that the deceased continued to taunt him and mock him that he was not the father of his daughter from a previous marriage.  It was at this point that he said he lost control and his mind went blank.  He went into the kitchen, fetched a knife and attacked the deceased frantically.  He could not remember the details, only that it was a continuous act and when he had finished he felt very tired.  He said he wrapped the deceased in a blanket and offered to take her to hospital, but she refused.  At that point, she admitted to him that she had betrayed him, but he was the love of her life.  He then sat on the ground and answered some calls on the deceased’s telephone by telling the callers that she had left for work. He said he wanted to take his life.  He then had a shower and left.  He went to see his daughter and confessed to her what he had done before leaving to go to mainland China.

186.  It should be noted that in addition to the applicant, Dr Wong Chung Kwong, a psychiatrist, was called to testify in relation to the applicant’s mental condition at the time of the offence in respect of the partial defence of diminished responsibility.  This was the first time that this defence had been advanced by the applicant.  Dr Wong saw the applicant on 30 June 2017, some 8 years after the relevant events.  The applicant was able to give him a full account of the relevant events that took place in 2009, which Dr Wong recorded in his psychiatric report dated 10 July 2017.

187.  The prosecution case was that the deceased was arranging to leave the applicant and had begun to look for a new apartment.  In fact, the applicant himself had acknowledged in his video record of interview that the deceased had suggested to him that they undergo a two-year separation.[106] The prosecution challenged the applicant’s account as to what took place prior to killing the deceased and that he should not be believed.[107] It was emphasised by the prosecution that in his video records of interview the applicant made no mention of the incidents of the deceased thrusting the condom in his face, taunting him about being sexually inadequate, and suggesting his daughter was the result of an extramarital affair by his ex-wife.

188.  The prosecution also emphasised that the applicant stated in his video record of interview that he had not touched the deceased for one to two months, and yet his semen was found in the deceased’s vagina, indicating he had sexual intercourse with her.  There were other matters as well that the prosecution relied on to show that the applicant’s account should not be believed and that he was fully aware of what he was doing at the time of the killing.[108]

189.  The prosecution submitted that the applicant was fully aware of what he had done as evidenced by his conduct during and after the killing of the deceased.  The applicant’s daughter testified that when he contacted her, he said “I have to lie low because I killed Aunty.”[109]

190.  The prosecution alleged that there was no provocative conduct by the deceased as claimed by the applicant, nor was he suffering from any abnormality of mind which substantially impaired his mental responsibility for the killing.

191.  To properly address the issue of retrial, it is necessary to have a full and accurate appreciation of the history of the case and a complete and realistic understanding of the relevant issues.  However, appellate courts have to be very careful when making a determination on an issue that requires an assessment of the factual circumstances and the substantive issues at trial. This is because they are not in the same position as the trial participants, who have lived with the case and fully understand the nuances and dynamics of it.

The first trial

192.  The first trial for the offence of murder was before Beeson J and a jury.  The trial commenced on 11 October 2010.  The prosecution called nine witnesses, including the male friend of the deceased, the applicant’s ex-wife and daughter.  Most of the police and forensic evidence was agreed, including the applicant’s out-of-court statements to the police.  It was an admitted fact that the applicant on 11 October 2010 answered the indictment by pleading not guilty to murder but guilty to manslaughter on the basis of provocation.  The sole issue in the case was whether he had been provoked by the deceased.  On 21 October 2010, the applicant was convicted of murder by the unanimous verdict of the jury.  He was sentenced to life imprisonment.

193.  The applicant appealed his conviction to the Court of Appeal (Stock VP, Barnes and McWalters JJ) which heard his appeal on 15 November 2011, 18 July 2012, 9 July and 30 October 2013.  The appeal occurred over a two-year period, primarily it would seem, to address various requests for transcript and to enable the grounds of appeal to be recast, and to cater for the availability of counsel.

194.  The Court of Appeal allowed the appeal and quashed the conviction because impermissible hearsay evidence was adduced at trial.  Stock VP (as Stock NPJ then was), giving the judgment of the court, observed:

“57. We have asked ourselves what effect the ‘understanding’ reached by counsel, and the absence of any objection by defence counsel to prosecuting counsel’s closing speech, has on our conclusion that there was a wholesale admission of inadmissible evidence, which, in our view, inured to the applicant’s disadvantage. It may be said with some force that where defence counsel makes a tactical decision of this kind which he perceives to be to the advantage of his client – and there was some advantage, perhaps, gained by the evidence that the applicant was not given to beating Ms Yeung – the court should be slow, absent an assertion of incompetence, to conclude that the conviction is unsafe or unsatisfactory.

58.  The problem in this case is that the understanding between counsel and the tactical decision by defence counsel was made upon an entirely illogical basis, which was that no harm would accrue so long as the judge directed the jury in relation to each piece of hearsay evidence that it was not admissible as to its truth even though, that was, on each occasion, the very purpose for which it was adduced.  The approach adopted can only have had one of two consequences: either wholly to confuse the jury or to leave open the high probability that the jury would use the evidence impermissibly and do so to the disadvantage of the applicant.  Neither consequence is acceptable and given the degree to which the inadmissible evidence went to undermine the defence of provocation, it can hardly be said that the conviction for murder is safe or satisfactory.”

195.  The court refused an application to substitute a verdict of manslaughter and ordered that he be retried.[110] The court said:

“76. Whilst there was clearly evidence to support the contention that the applicant was heavily provoked, there was also evidence that after his discovery of the fact that Ms Yeung had on 11 September 2009 been unfaithful, he and she had had sexual relations and evidence also of an extremely violent attack by him upon her. We think the questions to be resolved are essentially apt for jury determination upon a proper presentation of the evidence and, accordingly, we order that the applicant be retried upon a fresh indictment for the offence of murder. The case should be set down for a hearing within three months.”

The second trial

196.  At his second trial before V Bokhary J and a jury, the applicant was convicted of murder by the unanimous verdict of the jury on 31 March 2014.  He was sentenced to life imprisonment.  The sole issue at trial was, as before, whether he had been provoked by the deceased.  He again offered to plead guilty to manslaughter on the basis of provocation which was not accepted by the prosecution. 

197.  There was a pre-trial review on 14 November 2013 and at the request of the applicant the trial was adjourned from 20 November 2013 to 17 March 2014 with 9 days reserved.  On arraignment, the applicant pleaded not guilty to murder but guilty to manslaughter on the basis of provocation.  The prosecution case proceeded basically as before, as did the defence case, with the applicant being the only witness for the defence.

198.  The applicant appealed his conviction on two grounds.  The first was that the judge failed to direct the jury to assess the gravity of the provocation when assessing the second objective limb of the defence of provocation.  The second was that the judge failed to adequately direct the jury on how they may make a finding of unlawful act manslaughter on the facts of the case, and did not leave the alternative verdict as required in the case. 

199.  On 30 June 2015, the Court of Appeal, by a majority (Lunn VP and Macrae JA, with McWalters JA dissenting on the gravity of provocation ground) refused leave to appeal against the conviction.

200.  The applicant further appealed the Court of Appeal’s judgment to the Court of Final Appeal with leave of the Appeal Committee (Ribeiro, Tang and Fok PJJ) granted on 26 May 2016.  The Court of Final Appeal (Ribeiro, Tang and Fok PJJ, Stock and Lord Millett NPJJ) heard the applicant’s appeal on 11, 19 January and 7 February 2017.  The court allowed the appeal upon a construction of the phrase “do as he did” in section 4 of the Homicide Ordinance, Cap 339, and held that it had not been dealt with accurately and adequately by the judge in her direction to the jury.  An application to substitute a verdict of manslaughter was refused and a retrial was ordered.  The court said:

“127. This is not a case in which it would be appropriate to substitute a conviction of manslaughter, as was submitted on behalf of the appellant. This was the course adopted by the High Court of Australia in Johnson v The Queen. However, in the present case, where the issue of credibility of the facts on which the defence was based ought to have been left to the jury to determine, the only appropriate order on the quashing of the murder conviction is one of retrial.”

The third trial

201.  The applicant initially stood trial for a third time before A Pang J and a jury. However, two days into the trial (8 and 9 August 2017), the judge declared a mistrial because of adverse media reporting of the case.  There were a series of pre-trial reviews, on 12 June, 14 and 28 July, 1 and 3 August 2017 where various matters were raised by the defence, including that the defence would adduce psychiatric evidence on the issue of diminished responsibility.  This was the first time this defence had been raised by the applicant.  It was on 30 June 2017 that the applicant was seen by Dr Wong, who subsequently produced a psychiatric report dated 10 July 2017 on the mental condition of the applicant at the time of the offence.  As a result, arrangements had to be made, prior to trial, for the applicant to be seen by a government psychiatrist.  Dr Oliver Chan, a visiting psychiatrist at Siu Lam Psychiatric Centre, saw the applicant on 2 August 2017, after which he produced a psychiatric report dated 22 April 2018.

202.  Before the third trial, there was a pre-trial review on 1 March 2018 before M Poon J.  Mr Bruce was counsel for the applicant and there was an issue about the applicant’s legal representation but that was resolved by the time of the Case Management Hearing on 12 March 2018. 

203.  The trial commenced on 10 April 2018 after the empanelment of the jury. Like before, most of the police and forensic evidence as well as the applicant’s out-of-court statements to the police were agreed.  However, as already indicated, this time the applicant, in addition to the partial defence of provocation, relied on the partial defence of diminished responsibility. After the applicant had given evidence, he called Dr Wong on the issue of diminished responsibility and the prosecution called Dr Chan in rebuttal.  At the conclusion of the trial, on 26 April 2018, the applicant was convicted of murder by unanimous verdict of the jury.  He was sentenced to life imprisonment. 

The present appeal

204.  As noted by McWalters JA in his judgment, the error this time round was the failure of the judge to direct the jury on the relevance of the psychiatric evidence in relation to the defence of provocation.  The verdict of the jury clearly indicates that they rejected the defence psychiatric evidence in relation to the issue of diminished responsibility.  Whether they would have accepted such psychiatric evidence when considering the issue of provocation is another matter.  There was also the prosecution psychiatric evidence, which they were also obliged to take into account in relation to the issue of provocation. 

205.  Prior to closing addresses, the judge in the afternoon on 19 April 2018, provided to counsel a draft written outline of her directions to the jury on the law.  After giving counsel time to consider the draft, she invited comment from them.  We do not have a copy of the draft, and so we have to rely on the final written outline that the judge gave to the jury after she had discussed the matter with counsel.  Before going to her discussion with counsel, it would be useful to set out relevant parts of the final written outline to put matters in context.  In the body of the written outline of her directions on provocation, the judge set out the first limb as follows:

“1. Prosecution has a special legal meaning, and you must consider it in the following way.

2. 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 another person rather than just by his own bad temper.

*In the present case, the incidents of the finding of the condoms, the incident about the condom where Madam Yeung allegedly pushed the condom towards the lips and teeth of the Defendant asking him to eat it, the taunt about the Defendant being inadequate as a sexual partner, the suggestion that the Defendant’s daughter was the result of an extramarital affair by his ex-wife and was not fathered by him, and the repeated refusal on the part of Madam Yeung to disclose who she was having sexual relationship with. Those are matters which I say are included in the concept of the provocation consideration, but they are not the only items. You may find other items which relate to the provocation issue as well. In the present case the defendant also relies on cumulative provocation in relation to matters which happened in August and September 2009 which the Defendant described in his evidence. You will have to take all these matters into consideration and also consider the cumulative effect instead of one by one in isolation. The prosecution says that these never happened and the Defendant simply made them up to try to convince you that he was provoked into killing Madam Yeung.*” (Emphasis added.)

206.  The underlined comments above were included at the suggestion of Mr Bruce, but he made no suggestion to the judge that she refer to the psychiatric evidence under the first limb.  After some brief remarks, the judge then set out the second limb as follows:

“4. But, if you conclude that the defendant was or might have been provoked, in the sense which I have explained, you must:

(a) Form a view as to the gravity of the provocation for the defendant in all the circumstances, taking into account everything said and/or done to the defendant (including any peculiarity of the defendant which affects that gravity); and

(b) You should then decide whether in your opinion, having regard to the actual provocation and your view as to the gravity, a person having ordinary powers of self-control would have done what the defendant did.

5. A person having ordinary powers of self-control 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, and having the history, experience, background, features and attributes of the Defendant. To such special characteristics would include, amongst others, that he was brought up in Mainland China, had harmonious relationship with his family there, with some education, a professional driver and a new immigrant to Hong Kong: whose wife committed adultery and parted with him, and subject to your findings that he suffered mild to moderate grade Major Depressive Disorder, or Adjustment Disorder, as the case may be.” (Emphasis added.)

207.  As will become apparent when reading the transcript of the discussion between the judge and Mr Bruce, the underlined comments above were added at Mr Bruce’s suggestion.  In this respect, it is significant that he did not request that the psychiatric evidence be referred to under the first limb.  The judge continued to address in her written outline other matters in relation to the requirements of the defence of provocation.

208.  In respect of the draft written handout on provocation, the following exchange took place between the judge and counsel:

“MR BRUCE: … As to provocation, first page in the italicized part at the bottom …

COURT: Yes?

MR BRUCE: ... we do say that there are other matters but we would like -- respectfully like you to spell them out, and the one that immediately comes to mind is the refusal on the part of Ms Yeung to say who she was having an affair with or having sexual relations with.

COURT: Yes?

MR BRUCE: That’s the one, as I say, that immediately springs to mind because that was on his evidence a matter which caused him grave upset and he went back to it time and time and time again.

COURT: Yes, but I don’t want to reiterate too much because this is just on the part of provocation. But when I deal with the evidence, I will go over all those.

MR BRUCE: I rather thought that might be the case that I was being over-cautious ...

COURT: Yes.

MR BRUCE: ... in a very respectful way.

COURT: Yes, that’s the reason why I say here that there are others, they are not the only items. Yes.

MR BRUCE: Because you will be dealing with them in your summing-up. Very...

COURT: In my summing-up as to the evidence.

MR BRUCE: Yes. As long as the jury get the message somehow that that’s one of the matters.

COURT: Yes. But if you would want me to highlight this into this paragraph, I’m happy to do so.

MR BRUCE: Highlight, no, just put it -- my submission is that it might be another matter just to put into the mix...

COURT: Yes.

MR BRUCE: ... there - excuse me - because it was a matter of concern for him. Excuse me. The only other aspect of the provocation apart from the typo, paragraph 8, second line...

COURT: Paragraph 8?

MR BRUCE: Second line.

COURT: Second line?

MR BRUCE: ‘Defendant’s age’, not ‘aged’.

COURT: Second, ‘age’. Yes?

MR BRUCE: And we wish to engage you as to the part in square brackets, the special characteristics and...

COURT: What do you want me to say about these special characteristics?

MR BRUCE: First of all, it is submitted that the major depressive disorder which is of mild to moderate degree is a special characteristic. It will be a little complicated because Dr Chan goes to adjustment disorder.

COURT: Major depressive disorder...

MR BRUCE: Mild to moderate. That’s Dr Wong’s position.

COURT: If found.

MR BRUCE: Yes, if -- yes, of course, of course, all of that is ...

COURT: Yes. I mean I can’t just put major depressive disorder there.

MR BRUCE: No, no, no, that would ...

COURT: Be usurping the function ...

MR BRUCE: ... be unfair to the prosecution and ...

COURT: Yes.

MR BRUCE: ... render the matter unbalanced.

COURT: If you should find that there was major depressive disorder.

MR BRUCE: Yes, again I wasn’t -- I assume that the language would be communicated on that basis. And the memory of previous adultery, this is the emotional memory point that Dr Wong spoke about today and yesterday. And taking my inspiration from paragraph 47 of the Court of Final Appeal’s judgment in Liang which I have -- here it is. That is at page 25. Does my Lady have a copy?

COURT: It’s in my chambers. I’ll ask my ...

MR BRUCE: We have a spare.

COURT: Yes. Thank you. Paragraph 48.

MR BRUCE: Yes.

COURT: Yes.

MR BRUCE: The magic words I want to respectfully draw to your Ladyship’s attention were: ‘Thus, the reasonable man who is expected to exercise ordinary powers of self-control’ - all of that is in your direction – ‘is a person having the history, experiences, background, features and attributes of’...

COURT: Paragraph 48, which line?

MR BRUCE: 47, my Lady.

COURT: 47?

MR BRUCE: The first sentence.

COURT: Yes. Yes. Please continue.

MR BRUCE: And the proposition I was going to make is that the direction in this context will have to deal with, again if proved or if you consider that it might be the position, the ‘experiences, background, features and attributes of the defendant relevant to the provocation’, and the history we’ve covered, pretty much ad nauseam, in terms of the previous adultery and associated matters. Experiences would include, in my submission, the earlier condom incidence if I could put it in. I’m sure your Ladyship understands the shorthand I’m using as far as that’s concerned.

COURT: Yes.

MR BRUCE: ‘Background, features and attributes of the defendant’ I take as one concept, respectfully. And the background is he is a mainlander with some education, some training in the army. His features and attributes -- the -- he kept talking about concerns with family and wanting to have one, in simple language. And his attributes I think we have covered already. But that was the mental checklist that commended itself to me and ...

COURT: Yes, that should also go within paragraph 8, right?

MR BRUCE: Yes, as to the reasonable man with the characteristics of -- with the magic word ‘powers of self-control’, ‘having the history, experiences, background, features and attributes of the defendant’.

COURT: Yes.

MR BRUCE: I’m always reluctant on my feet to offer a draft, as it were, but ...

COURT: It’s good enough.

MR BRUCE: Thank you very much. Those are my submissions unless I can assist further as far as the handouts are concerned.

COURT: Do you have anything to say, Mr Chau?

MR CHAU: I think I’m in complete agreement with Mr Bruce. I’m quite happy for ...

COURT: All right.

MR CHAU: ... your Ladyship to direct on those lines.” (Emphasis added.)

209.  It was some five days later, on 24 April 2018, that both counsel gave their closing addresses to the jury.  They therefore had a fair amount of time to consider the draft written outline and to make any further submissions to the judge in respect of her directions on provocation, but neither did. 

210.  Prosecuting counsel, in his closing address mentioned the requirements of provocation by following the specimen direction, emphasising that the only account they had as to what took place was what the applicant had told them and that the question for them was whether they accepted his evidence.  He also told them that when they consider what happened they were to look at the characteristics of the applicant which were to be mentioned by the judge in her summing-up to them.  He mentioned the psychiatric evidence in relation to the defence of diminished responsibility.[111]

211.  In his closing address to the jury, Mr Bruce took the same position he took previously when he discussed with the judge the draft written outline. After presenting to the jury an extensive outline of the factual matters, Mr Bruce had this to say on the law of provocation:

“The question you have to consider was whether, indeed, he was provoked by things said and done in losing his self-control and, if so, whether an ordinary person in similar circumstances would or may be provoked to lose their self-control and kill. You will be given legal directions by my Lady in due course. And, as has been told to you many times before, but it is right -- and I hope you’ll forgive me for saying it again -- you take the law from my Lady. So if there’s any conflict between what I say and what she says, there’s only one resolution; it’s what she says. If you’re sure that Mr Liang was unlawfully killed by Ms Yeung intending to kill or to cause grievous bodily harm, then the defendant is guilty of murder, unless you conclude that this was or may have been a case of provocation. Prosecution must make you sure that this is not a case of provocation. And you’ll consider the issue in this way, I suggest: first, was he provoked in the legal sense? Did he have a sudden and temporary loss of self-control by things said and done by Ms Yeung rather than just his own bad temper? If you conclude that he was or might have been provoked, then you consider was that or may that have been conduct such as to cause an ordinary sober person to do what he did?

The meaning of an ordinary person is 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 and who has his characteristics. And I’d invite you in this case to consider that. 39 years old, we know, male, suffering from a moderate to mild degree of a major depressive disorder, as based on the opinion of Mr Wong, or suffering from an adjustment order (disorder?) as expressed by Dr Chan. Suffering from the emotional memory of his ex-wife’s adultery. If you think that the conduct would have been provoking to a person who, like the defendant, was sensitive that he was possibly a sexually inadequate man, was previously cheated on by his wife, then you’ve got to ask yourself whether an ordinary person with those characteristics and personal history would do as he did. It’s important that you view the ordinary man in this context. He must be a person who has the history, experiences, background, features and attributes of the defendant for the provocation. You must consider whether in this specific context the ordinary person could or might have done as he did. And you’ll be directed in due course you must take into account everything which was done or said according to the effect which, in your opinion, it would have on that ordinary person.

Now, as you’ll be directed in due course, there’s a little bit more that you need to know. In considering whether Ms Yeung’s words and actions would or might have been such as to cause the ordinary person to do as the defendant did, it’s not a question of whether that person would have reacted exactly as he did. You don’t have to say well, would the ordinary person have chopped her 203 times? No. What you have to do is look at it this way. It is sufficient if you find that the provocation which was presented would or might cause an ordinary person placed in the same situation to lose control and cause her death with the intention of doing so or doing serious bodily harm. So you don’t have to ask yourself, well, would the reasonable man have chopped her 213 times? The answer is no. Just would he in those circumstances have been provoked to kill?”[112] (Emphasis added.)

212.  It is clearly apparent from the highlighted comments of Mr Bruce in his closing address that he made no mention of the psychiatric evidence under the first limb of provocation, and only specifically discussed the psychiatric evidence under the second limb.  This approach by the defence gives the impression that a tactical decision may have been made to lay emphasis on the alleged provocative conduct of the deceased, ensuring the impact of it was not lessened by reference to the psychiatric evidence, in order to establish that the applicant was or might have been provoked.

213.  On 25 and 26 April 2018, the judge summed up the case to the jury.  She gave to the jury the written handout in relation to the defence of provocation, which she also read out to them.  She had incorporated the amendments suggested by Mr Bruce, by referring to the psychiatric evidence under the second limb of provocation.  So far as material, she said:

“ A person having ordinary powers of self-control 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 – that is male and 39 at the time of the offence – and having the history, experience, background features and attributes of the defendant. Such special characteristics would include, as you have heard in the evidence, amongst others, that he was a person who was brought up in mainland China, he had a harmonious relationship with his family there, he had some education, he had been a profession driver and a new immigrant to Hong Kong at the time of the offence, and whose wife committed adultery and parted with him, and also subject your findings that he suffered mild to moderate grade major depressive disorder or adjustment disorder as the case may be.”[113]

214.  As already noted, the defence case seemed to be placing emphasis on the provocative conduct of the deceased and the emotional state of the applicant at the time of the killing, and this was mentioned to the jury by the judge in her summing-up:

“ Defence counsel in his final speech to you yesterday invites you to take into account this rollercoaster of emotions which it was submitted if true or might be true then it is easy to see how a person might be provoked to loss self-control and kill. Now, it was at this point, the defendant went to the kitchen, fetched a chopper and chopped her frantically. He could not remember the details of the chopping, only remembered that it was a continuous act, and when he finally finished, he felt very tired. When he stopped, he said that he wrapped her in a blanket and offered to take her to a hospital, but she refused. At that point, he said she admitted to have betrayed him, but he was the love of her life.”[114]

Discussion

215.  As I have explained, the exercise of this court’s discretion to order a new trial involves a two-stage analysis. 

216.  First, is the available evidence sufficient to support a conviction for the offence of murder.  There is no dispute that the applicant killed the deceased and the only issue is whether either of the defences of provocation or diminished responsibility are available to him so as to reduce the offence of murder to one of manslaughter.  This is a case where the evidence is sufficient on which a properly directed jury could return a verdict of murder.

217.  Secondly, on there being sufficient evidence to support a conviction for the offence of murder, then do the interests of justice support a retrial. This critical question depends on what justice requires and this involves balancing a number of competing factors, some weighing for, and some against, a retrial.

218.  McWalters JA, in his analysis on the issue of retrial, examined the relevant considerations in determining whether the interests of justice required the applicant be retried for the offence of murder.  He addressed the issue by asking the following question: “whether the interests of justice require that the applicant be forced to endure a fourth trial so that a determination can be made as to whether he should be punished for murder, which carries a mandatory sentence of life imprisonment, or for manslaughter, for which he would be sentenced by this court to a fixed term of imprisonment.”[115]

219.  He concluded that the interests of justice did not require that the applicant undergo a fourth trial for the following factors:

“(i) on the assumption that the applicant was awarded a discount of one third for his offer to plead guilty to manslaughter then the applicant has, in effect, already served a fixed term sentence of approximately 23 years’ imprisonment;

(ii) the applicant has been forced to undergo the ordeal of three trials and multiple appeals over the course of 10 years and as a consequence a fourth trial to determine whether he is guilty of murder, as opposed to manslaughter, would be oppressive to him;

(iii) there would be considerable difficulties in ensuring that a fourth trial would be a fair trial;

(iv) a substituted verdict means that the applicant does not escape justice and does not go unpunished for his crime;

(v) a substituted verdict will bring finality to the proceedings arising from this crime and this will provide additional benefits of:

(a) a saving to the public purse; and

(b) closure for the applicant and his family; and

(vi) on a properly conducted retrial a verdict of manslaughter cannot be said to be an unlikely verdict as there was independent evidence of provocative conduct by the deceased and the murder was clearly committed in a frenzied state consistent with a loss of self-control. We note that in R v Bell the English Court of Appeal said of a third trial for murder:

‘The broad public interest in the administration of criminal justice leads us to the clear view that a second retrial should be confined to the very small number of cases in which the jury is being invited to address a crime of extreme gravity which has undoubtedly occurred (as here) and in which the evidence that the defendant committed the crime (again, as here) on any fair-minded objective judgement remains very powerful.’

we are not persuaded that it can be said that on a fair-minded objective judgement, the evidence ‘remains very powerful’ for the return of a verdict of murder, as opposed to a verdict of manslaughter.”[116]

220.  I stress from the outset that the question to be answered is whether the applicant should be retried for the offence of murder, not whether a conviction for manslaughter will be an acceptable alternative, although that may be a consideration in deciding the matter.  Of course, a factor that has to be given the greatest weight in answering this question is that the applicant has already undergone three trials and various appeals over a period of 10 years. Where I am in respectful disagreement with McWalters JA, is his emphasis on various matters, particularly that a conviction for manslaughter is a likely result and that time served by the applicant would be a substantial sentence for this offence and would mean that he would not be unpunished for his crime; that a fourth trial would be oppressive and there would be considerable difficulties in ensuring that the applicant would receive a fair trial; and that a substituted verdict of manslaughter would bring finality to the case, as well as providing a saving to the public purse and closure for the applicant and his family.

The seriousness of the offence

221.  An important consideration in determining whether to order a retrial is the public interest in the due prosecution and conviction of offenders, and the seriousness of the alleged offence.  In the present case, the applicant is facing the most serious offence in the criminal calendar, namely the offence of murder, involving a grievous case of domestic violence where he has brutally killed his cohabitee.  The deceased had been violently attacked by the applicant with a knife as evidenced by the number of wounds she sustained and that some of her teeth were found in the flat and in her stomach.  She also had defensive injuries to her limbs which indicated that she tried to fend off the applicant when he attacked her.  There were also signs of manual strangulation. This is a very serious case of homicide which substantially turns on the acceptance or rejection of the applicant’s account of what took place before the killing.

The strength of the case

222.  Another important consideration is the strength of the prosecution case and whether it is a complex or lengthy case.  There is no question that the applicant killed the deceased.  The case is straightforward and of short compass.  The issue for the jury is whether the killing was with murderous intent or a case of manslaughter on the basis of provocation or diminished responsibility.  It would not be a lengthy or complicated case as the previous trials have revealed.[117]

223.  The applicant argues that he has a strong case for provocation.  It is submitted from the nature and circumstances of the attack, the applicant’s “frenzied attack” upon the deceased was a result of cumulative provocation from her.  Reference was made to the psychiatric evidence of the mental and emotional state of the applicant at the time of the offence, and to the evidence supporting that the deceased was having an affair with another man and had sexual intercourse with him on the day before the offence.  This issue will very much depend upon the jury’s acceptance or rejection of the evidence as to what happened between the applicant and the deceased prior to the killing.

224.  The respondent argues that there is a strong case for murder.  The prosecution has always mounted its case against the applicant on the basis that the only account of what happened comes from him, which should be disbelieved. They seriously challenge his credibility by highlighting various matters as to what he said happened in contrast with other evidence. 

The issues for a jury

225.  The Court of Final Appeal, when it ordered that the applicant face a third trial in this case, stated this was not a case in which it would be appropriate to substitute a conviction of manslaughter.  The court further stated that the issue of credibility of the facts on which the defence was based ought to be left to the jury to determine.[118] In my view, that consideration still applies, and there is no reason why it should not.

226.  The only change of circumstance is that the conviction in the third trial has been quashed because of an error in the judge’s legal direction on provocation, which was influenced by leading counsel for the applicant urging the judge to address the psychiatric evidence as he suggested, which ironically on appeal he successfully contended was wrong.  It also came about because the applicant, as he was entitled to do, advanced for the first time the partial defence of diminished responsibility, for which he relied on fresh evidence in the form of expert psychiatric opinion.  This was a case where the circumstances which brought about the possibility of a retrial were, in no small measure, due to the conduct of the applicant or those acting for him.

The consequence of no retrial

227.  In his judgment, McWalters JA explained that it was important to note the consequence in the present case of not ordering a retrial, which would not result in a complete acquittal but rather conviction for manslaughter that would attract a lengthy prison sentence.  In my view, consideration of such a factor needs to be carefully thought through to ensure that, firstly, it is appropriate, and secondly, it does not undermine the factor of ensuring that those charged with a serious crime have the charge determined by a court of law, and if found guilty, are appropriately punished.  Determining whether to grant a retrial is not an exercise of seeking an alternative solution, but rather addressing what the interests of justice demand in the circumstances of the case in relation to the offence alleged against the defendant.  

228.  Placing reliance on the alternative conviction for manslaughter with the possible punishment of 15 years’ imprisonment, unduly downplays the seriousness of the alleged offence of murder, and the Court of Final Appeal’s comments in this case on the last occasion it dealt with the issue of retrial, that this was not a case in which it would be appropriate to substitute a conviction for manslaughter as there were matters raised by the defence which ought to be left to the jury to determine.[119]

229.  In Tam Ho Nam (No 2), the Court of Final Appeal, when dealing with the issue of retrial in similar circumstances to the present case, said that the charge of murder faced by the appellant was a very serious one and that the interests of justice include the interest of the victim’s family and, more widely, the interest of the public in Hong Kong that persons guilty of serious crime should be brought to justice, and should not escape merely because the judge is subsequently found to have misdirected the jury on a point of law.

230.  The court went on to stress that questions to be addressed in evaluating the defence of provocation were pre-eminently ones for a jury and it would be preferable for a jury to determine if the appellant’s conviction for the alleged killing should be for murder or the lesser crime of manslaughter by reason of provocation.  The court noted that the appellant was sentenced to imprisonment for life, and it was not a case where he had already served the whole of his sentence as was the case in Mok Kin Kau, where that factor weighed against a further retrial.[120] The court also commented that whilst a third trial on any criminal charge was an unusual course, “it was by no means unprecedented.”[121]

231.  This is not the type of case that sometimes occurs, where the jury in the previous trial or trials of the defendant were unable to make a decision, questioning the viability of the prosecution case because of the inadequacy of the prosecution evidence.[122]  There is no doubt that the applicant killed the deceased and the circumstances of the case warrant that he be tried for the offence of murder.  It was not considered appropriate to substitute a conviction of manslaughter on the previous occasions when the appellate courts have ordered the applicant to be retried, nor is it appropriate on this occasion.  There is a vast difference between the offences of manslaughter and murder both in terms of the nature of the offending and the penalty to be imposed.

The lapse of time

232.  The applicant complains that there will be a delay of some 10 years before he faces his fourth trial.  He does not explain how this would be prejudicial and unfair to him except that there has been extensive negative media reporting prior to and during each of his previous trials.[123]

233.  It is to be noted that the Court of Final Appeal ordered a third trial in the present case in February 2017, about 7½ years after the offence.  In the related case of Tam Ho Nam (No 2), the Court of Final Appeal stated that whilst a third trial on any criminal charge must be an unusual course, it was by no means unprecedented.  In that case, the alleged offence of murder took place on 29 April 2009, and the court ordered a retrial on 22 September 2017, some 8½ years after the offence, which did not preclude the court from making the order.  For the reasons given by the court in that case, I am of the view that the lapse of time since the alleged offence, whilst an important consideration, would not adversely affect the applicant in the conduct of his defence at a retrial.[124] The applicant’s case rests on the partial defence of manslaughter by provocation or diminished responsibility, where the factual issues are not complicated and the mental state of the applicant at the time of the offence is addressed by expert psychiatric evidence from the defence and prosecution. 

234.  It is also to be noted that delay has been occasioned in the trials and appeals of the applicant partially because of the conduct of the defence, which was particularly manifest when the applicant advanced for the first time in his third trial, which he was entitled to do, the defence of diminished responsibility by seeking to adduce expert psychiatric evidence that was only obtained shortly prior to the trial.

Whether the applicant can receive a fair trial

235.  As noted the applicant argued that it would be unfair for him to be retried again because of extensive negative media reporting about the case in the past.  The notoriety of the applicant or the publicity of the case would not act as a bar to having the applicant retried for the offence of murder. The trial processes are clearly equipped to deal with such an issue in order to ensure that the applicant receives a fair trial.

236.  It is also suggested that the delay that has occurred in this case would have an impact on the fairness of the trial in so far as the nature of the defence requires the applicant to give evidence and to recall what happened over 10 years ago.  The point is made that any inconsistency in the applicant’s evidence would open him up to attack as to his credibility. 

237.  However, it needs to be borne in mind that the applicant has given an account of the events surrounding the killing of the deceased when he was consulted by the two psychiatrists in 2017 and when he gave evidence at the last trial in 2018.  The applicant also gave an account of the relevant events in his two video records of interview which had been produced into evidence as an admitted fact in the previous trials.  At the same time, the applicant also has the advantage of knowing what facts or issues will be raised against him at trial.

238.  I can only repeat the observations made by Fok PJ in Tam Ho Nam (No 2), when addressing a similar argument on the issue of delay, that any difficulties the applicant may have in recalling the events in question or his previous testimony can be mitigated, at least in part, by reference to his police interviews and the transcript of his evidence of his earlier trials, and if need be the trial judge can make appropriate directions to the jury to make due allowance in the applicant’s favour for the fact that he has to cast his mind back to events which took place a very long time ago.[125]

239.  I should also point out that the applicant’s different accounts of certain events prior to the killing between what he said in his video records of interview and his evidence have been a constant issue at all three trials.

The time served by the applicant

240.  It is argued that the applicant has spent 10 years in custody, but again, as explained by the Court of Final Appeal in Tam Ho Nam (No 2), the applicant was sentenced to imprisonment for life, and this is not a case where he has already served the whole or a substantial part of a sentence if convicted of murder.

241.  It is also argued that the ordeal of a trial is greater where its outcome could result in the defendant spending the rest of his life in prison, but this ignores the fact that this is the condign punishment for murder upon conviction.

The mental condition of the applicant

242.  I have taken into account the psychiatric evidence of Dr Wong and Dr Chan.  Briefly stated, Dr Wong expressed the opinion that the applicant at the time of killing had been suffering from Major Depressive Disorder of mild to moderate severity and Acute Dissociative Reactions to Stressful Events, which was a brief acute and serious disorder.[126] Dr Chan, on the other hand, disagreed with Dr Wong’s diagnosis and found that the applicant had been suffering from an adjustment disorder and that the discovery by the applicant of the deceased’s infidelity had been a major life stressor.[127]

243.  Taking the psychiatric evidence at its highest, it would appear that the applicant’s mental condition would not materially affect him in contesting the charge of murder, or having to go through a further trial since the offence took place.  It is worth noting that the applicant’s mental condition has not posed any difficulty in the conduct of his defence or undergoing the ordeal of a trial on previous occasions.

The number of trials

244.  The applicant leans heavily on the fact that if a retrial is ordered, it would be his fourth trial.  The number of times a defendant has previously faced trial, and whether it would be unduly oppressive to subject him to the significant ordeal of another trial, is an important consideration, particularly when it involves sending the applicant to trial for a fourth time.[128]

245.  There comes a time, after repeated attempts to try a person for a criminal charge, when enough is enough.  A reflective view of the history of this case has, in my view, a bearing on the question whether the applicant should be tried for a fourth time.  It is without doubt an exceptional course to take and there has to be special and compelling reasons to do so. 

246.  Finality is an important component of our criminal justice system.  There is clearly a desirability by all involved that cases are processed and completed fairly and efficiently and that the guilt or innocence of an offender for an alleged offence is finally determined by a court of law.  However, this factor must be considered within reason and in the relevant circumstances of the case.

Whether no fault of the applicant

247.  As noted by Mortimer JA in Holgate (No 2), a court is required to consider all the surrounding circumstances, including amongst other things, the history of the proceedings and the reason for the success of the appeal.[129] I have for this purpose examined the procedural history of the case, the summing-ups of the previous trials, the appellate decisions, and of course, the appeal bundle which did not include a transcript of the applicant’s evidence or the discussion between the judge and counsel about the judge’s written outline to the jury on provocation (this was included after it came to our attention when deciding the issue of retrial).

248.  A relevant consideration is whether the circumstances which brought about the possibility of a retrial was in some material way due to the fault of the applicant or those acting for him.

249.  The applicant’s conviction after the first trial was quashed because impermissible hearsay evidence was adduced before the jury, to which defence counsel was complicit in allowing this material to go before the jury for some tactical advantage.  It would seem that counsel acting for the applicant was partially responsible for the error that took place.[130]

250.  The applicant’s conviction after the second trial was quashed because of a legal issue as to an element of “do as he did” in the test for the defence of provocation that was addressed by the Court of Final Appeal.  It brought about an important clarification on this issue that resulted in the quashing of the applicant’s conviction.  Whilst it may be considered to be a technical matter, it was not due to the conduct of the applicant or those acting for him.

251.  The applicant’s conviction after the third trial was quashed in circumstances whereby defence counsel contributed to the error made by the judge.  The applicant raised an additional defence which he had not done previously, which was partly responsible for complicating the defence of provocation. The failure of the judge to mention the psychiatric evidence under the first limb of provocation was compounded by defence counsel’s submissions to her, which she adopted.  Whilst I accept that prosecuting counsel, and indeed the judge, should have picked up the error and made sure that the psychiatric evidence was referred to under the first limb of provocation, defence counsel was significantly responsible for it, stressing the alleged provocative conduct of the deceased under the first limb and the psychiatric evidence under the second limb. 

252.  I should stress that this factor is not determinative as to whether or not to grant a retrial, but it is a consideration to be weighed together with all other considerations.

253.  The three previous convictions were a result of unanimous verdicts of the jury.  Admittedly, errors were committed in the course of those trials of the applicant, which resulted in the convictions being quashed, and therefore it is not known if those errors had not been committed whether guilty verdicts would still have resulted, even unanimously.  But it was not the case as seen in so many other cases, where the evidence was insufficient to justify a conviction by a reasonable jury even if properly directed,[131] or where the jury was hung and unable to render a verdict.[132]

254.  In my view, it would be inappropriate to attach too much significance to the proposition that the likely result of this case going to trial would be a verdict on manslaughter.  It would be equally available to say that a murder conviction is also a likely result.  It is not without significance that in the present case there is no issue that the applicant killed the deceased.

The interests of justice

255.  The interests of justice, not only include the interest of the applicant but also the interest of the victim and his or her family and the interest of the public.  The issue of whether to order a retrial involves an overall consideration of all relevant factors for and against such an order.  The prime factors against a retrial are the number of trials and appeals the applicant has so far undergone, and the age of the case and the need for finality.  As noted by the Chief Justice in Zhou Limei, the individual factors may not be sufficient, but cumulatively they may tip the scale for or against a retrial.  I am satisfied, taking all relevant factors into account, that the interests of justice require that the applicant be retried for the offence of murder.

256.  This is not a case where the conduct of previous trials or the lapse of time will act unfairly or oppressively against the applicant.  Nor is it a case where there is some doubt as to whether the applicant killed the deceased.  It is incontrovertible that the applicant killed the deceased and the sole issue to be decided is whether he killed the deceased with murderous intent or whether he did so on the basis of provocation or diminished responsibility to reduce the offence from one of murder to one manslaughter.  This is a fairly straightforward case factually where the questions to be addressed in evaluating the defence of provocation or diminished responsibility are pre-eminently ones for a jury.

257.  In summary, I am persuaded that the applicant should be retried for a fourth time and my decision includes the following considerations:

(1)  The number of trials and appeals.  The applicant has undergone three trials and various appeals and this is a significant factor against ordering a retrial, but this has been outweighed by other factors that have led to the decision that the applicant should be tried for a fourth time.  I do not consider that a fourth trial would be oppressive in the circumstances.

(2)  The lapse of time.  The delay in putting the applicant on trial for a fourth time is also a significant factor against ordering a retrial, but bearing in mind the history of the proceedings and nature of the case I do not consider that this will cause any material prejudice to the applicant.

(3)  The need for finality.  This is an important consideration that must also be considered together with the seriousness of the offence.  It is desirable that the guilt or innocence of the applicant for the alleged offence of murder be finally determined by a jury.  This consideration not only takes into account the interests of the applicant, but also the interests of the victim’s family and the interests of the public.

(4)  The seriousness of the offence and the strength of the case.  This case involves an alleged offence of murder.  There is no question that the applicant killed the deceased.  The issue at trial is whether the applicant killed the deceased with murderous intent or whether he was provoked or suffering from diminished responsibility at the time of the killing.

(5)  The length and complexity of a fourth trial.  This is a fairly straightforward case where the issues are well defined.

(6)  The nature of the case and the matters in issue.  The questions to be addressed in evaluating the defences are preeminently ones for a jury and it is clearly preferable for a jury to determine if the applicant’s conviction for killing the deceased should be for murder or the lesser crime of manslaughter.

(7)  The alternative conviction of manslaughter.  A serious crime of murder is alleged against the applicant and it is in the interests of the public that persons charged with such serious crime have the charge determined by a court of law, and if found guilty, are appropriately punished.

(8)  The length of time served.  The applicant if convicted of murder would be sentenced to life imprisonment.

(9)  Whether the applicant can receive a fair trial.  It is said that there will be difficulties in the applicant receiving a fair trial because of (i) his previous statements and evidence; and (ii) media publicity of the case.  If an issue should arise in relation to these matters they can be appropriately dealt with in the trial process.

(10)  The history of the proceedings and the applicant’s responsibility for the mistrials and delay.  It would seem that the applicant is partly responsible for the delay in the proceedings because of the way he has run the defence case which at the third trial changed to include the defence of diminished responsibility.  There is also the factor that the applicant’s conviction has been quashed because of a misdirection by the judge for which leading counsel was partly responsible.

(11)  The applicant’s mental condition.  It does not appear that the applicant’s mental condition would preclude ordering a retrial either on that basis or together with other factors, namely undergoing a fourth trial and the lapse of time since the offence took place.

Conclusion

258.  It follows from what I have said that there are special and compelling reasons that the applicant should be tried for a fourth time for the offence of murder. 

Hon Macrae VP:

Disposition

259.  The court unanimously grants the applicant leave to appeal and, treating the hearing of the application as the hearing of the appeal, allows the appeal. The conviction of the applicant is quashed and the sentence set aside.  By majority the court orders that the applicant be retried on a fresh indictment to be filed with the court within 14 days.

[1] Mr Bruce and Ms Souza also appeared for the applicant in this appeal.

[2] Appeal Bundle, page 37D – E.

[3] The applicant was correct in his suspicion that the deceased was having an affair but wrong in respect of the person whom he suspected of being her lover.

[4] Appeal Bundle, pages 38P – 39A.

[5] Also, when testifying in the prosecution case, the daughter said that the applicant mentioned to her that he suspected the deceased had a new boyfriend.

[6] The applicant’s daughter said that at 9.18 pm the applicant called her and in the course of the conversation he told her that he had found a condom and that the deceased had taken a man home.

[7] Appeal Bundle, page 44K – O.

[8] This was consistent with the ex-husband’s evidence.

[9] Appeal Bundle, page 69, [26] and [27].

[10] To these he subsequently added emotional memory of the applicant’s ex-wife’s adultery; see [41]- [43] of this judgment.

[11] Appeal Bundle, page 75, [41].

[12] Appeal Bundle, page 75, [42].

[13] Appeal Bundle, page 77, [48].

[14] Appeal Bundle, page 79, [55].

[15] Appeal Bundle, page 81, [58].

[16] Appeal Bundle, page 82, [59].

[17] Appeal Bundle, page 130, [16].

[18] Appeal Bundle, page 131, [17].

[19] Appeal Bundle, page 131, [20].

[20] Ibid.

[21] Appeal Bundle, page 138, [7].

[22] Appeal Bundle, pages 208D-210G.

[23] Appeal Bundle, page 248J-K.

[24] Appeal Bundle, page 248K-P. 

[25] CACC 90/2013, unreported, 6 June 2014.

[26] Appeal Bundle, page 27M-P.

[27] Appeal Bundle, page 28I - K.

[28] Appeal Bundle, page 28K - P.

[29] The other two expert witnesses were the pathologist and the blood spatter expert.

[30] Appeal Bundle, page 22G-K.

[31] Appeal Bundle, page 135.

[32] Appeal Bundle, page 136 at [4(b)].

[33] Specimen Direction 51, Provocation (Murder).

[34] Appeal Bundle, page 137.

[35] (2011) 14 HKCFAR 453

[36] HKSAR v Liang Yaoqiang [2014] 4 HKC 145, 166 at [76].

[37] HKSAR v Liang Yaoqiang (2017) 20 HKCFAR 1, 52, at [127].

[38] (2007) 10 HKCFAR 632, 651-652 at [49].

[39] [1979] HKLR 16, 19.

[40] (2020) 23 HKCFAR 169

[41] Ibid at [9].

[42] Ibid at [4].

[43] Ibid at [14].

[44] Ibid at [15].

[45] Ibid at [15].

[46] Ibid at [20].

[47] [2001] UKPC 19, (2001) 58 WIR 1, 15.

[48] [2010] 1 Cr App R 27

[49] Ibid at [37].  This passage was quoted with approval by the Hong Kong Court of Appeal in HKSAR v Li Yanhong (No 2) [2016] 1 HKLRD 946, 949-950, at [11].

[50] HKSAR v Liang Yaoqiang [2014] 4 HKC 145

[51]  See [226] in the judgment of Zervos JA.

[52] (2008) 11 HKCFAR 1

[53] Ibid at [12].

[54] See footnote 43.

[55] (2008) 11 HKCFAR 1, 4 at [10].

[56] In my view, as a matter of legal principle, the applicant should be accorded a full one-third discount on the sentence as he has all times offered to plead guilty to manslaughter and in none of his trials has he ever sought a complete acquittal.  On arraignment, he pleaded guilty to manslaughter. 

[57] 23 years discounted by one third is 15 years 4 months which when discounted again by one third to allow for remission by the Commissioner for Correctional Services is 10 years 2 months.

[58] [2010] 1 Cr App R 27, 418 at [46].

[59] The submissions of counsel to the judge on the proposed written directions took place in the afternoon of 19 April 2018.  Appeal Bundle, 206 to 218.

[60] Mr Bruce’s closing address to the jury took place on 24 April 2018.  Appeal Bundle, 229 to 249, see in particular 239J to 241Q. The thrust of the defence case on the issue of provocation under the first limb of the applicant losing his self-control focused on the provocative acts of the deceased as alleged by the applicant.

[61] Au Pui Kuen, at 19.

[62] Au Pui Kuen, at 19 and 20.

[63] The Jamaican provision is contained in section 14(2) of the Judicature (Appellate Jurisdiction) Act, which reads: “Subject to the provisions of this Act the court shall, if they allow an appeal against conviction, quash the conviction, and direct a judgment and verdict of acquittal to be entered, or, if the interests of justice so require, order a new trial at such time and place as the court may think fit.”

[64] Reid, at 346D – F and 349 C – F.

[65] Ibid at 349B – C.

[66] Ibid at 349G – 350B.

[67] Ibid at 350B – H.

[68] Lazarus, at [161].

[69] Holgate (No 2), at 325I – 326B.

[70] Ting James Henry, at [52] – [53].

[71] Mok Kin Kau, at [14].

[72] Au Pui Kuen, at 20.

[73] R v Chau Mei Ling [1981] HKC 542, 545B – C.

[74] See Nguyen Anh Nga v HKSAR (2017) 20 HKCFAR 149, at [65]; Liang Yaoqiang, [127]; HKSAR v Lo Chun Siu (CACC 90/2013, [2014] HKEC 936), at [191]; HKSAR v Wong Wai Man (CACC 459/2001, [2004] HKEC 544), at [3].

[75] (2008) 11 HKCFAR, 1, at [12].

[76] Compare Ting James Henry v HKSAR, at [50], where the fact that the original trial was long and complex was treated as a factor of particular significance weighing against a retrial.

[77] Au Pui Kuen, at 357D – E.

[78] Forrester Bowe (Junior) v The Queen [2001] UKPC 19, at [39].

[79] Tam Ho Nam (No 2), at [21].

[80] Mok Kin Kau v HKSAR (2008) 11 HKCFAR 1, at [10].

[81] Au Pui Kuen, at 356H.

[82] Au Pui Kuen, at 357C – D.

[83] At 359D-E. See also Dennis Reid, at 350G – H.

[84] [1955] 39 HKLR 49, at 60.

[85] Ting James Henry, at [51].

[86] Au Pui Kuen, at 357D – E.

[87] Ting James Henry, at [50].

[88] At [12] and [14].

[89] See Tam Ho Nam (No 2), at [24], referring to R v Chau Mei Ling [1981] HKC 542, at 545B – C; Mok Kin Kau, at [7]; HKSAR v Li Yanhong (No 2) [2016] 1 HKLRD 946, at [14].

[90] See, for example, Ting James Henry, at [52].

[91] Zhou Limei (No 2), at [9].

[92] Ibid at [10].

[93] Ibid at [14].

[94] Ibid at [21].

[95] Tam Ho Nam (No 2), at [21].

[96] Taufahema, at [52] and [144].  See also Eastman v DPP (No 2) [2014] ACTSCFC 2, at [265].

[97] Gilham v R [2012] NSW CCA 131, at [649].

[98] Appeal Bundle, 19 – 57, the judge’s summing-up.

[99] Appeal Bundle, 9, Admitted Facts, at [7] and [8].

[100] Appeal Bundle, 37C – E.

[101] Appeal Bundle, 38I.

[102] Appeal Bundle, 37F – 39A.

[103] Appeal Bundle, 39M – 50T.

[104] Appeal Bundle, 44C – D.

[105] Appeal Bundle, 44K.

[106] Appeal Bundle, 221Q – 222D.

[107] Appeal Bundle, 46Q – 50T.

[108] Appeal Bundle, 47B – 48L.

[109] Appeal Bundle, 225A – H.

[110] I should point out that I was counsel for the respondent in this appeal.  This was disclosed to the applicant who through his counsel took no objection to my involvement in this appeal.

[111] Appeal Bundle, 225L – 227P.

[112] Appeal Bundle, 240N – 241Q.

[113] Appeal Bundle, 28H – P.

[114] Appeal Bundle, 45L – R.

[115] At [141] of this judgment.

[116] At [143].

[117] Reid, at 350.

[118] See [200] of this judgment.

[119] See [200] of this judgment.

[120] See [166] of this judgment.

[121] Tam Ho Nam (No 2), at [24].

[122] Reid, at 348G – 349B.

[123] See the Applicant’s Supplemental Submissions dated 18 October 2019, at [22(b)].

[124] See [166] of this judgment.

[125] See [166] of this judgment.

[126] Appeal Bundle, 82, at [59].

[127] Appeal Bundle, 130 – 131, at [16] and [17].

[128] Taufahema, at [55].

[129] See [158] of this judgment.

[130] See [208] of this judgment.

[131] Reid, at 349B – 350B.

[132] Bell, at [27].