HKSAR v. BUI VAN-CUONG

FAMC No. 35 of 2023

[2023] HKCFA 46

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 35 OF 2023 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 180 OF 2020)

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REASONS FOR DETERMINATION

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Mr Justice Stock NPJ:

1.  On 12 July 2017, the applicant was convicted after trial[1] of the offence of murder and sentenced to life imprisonment. His application for leave to appeal against conviction was dismissed by the Court of Appeal[2] on 2 March 2023[3]. He now seeks leave to appeal the judgment of the Court of Appeal on the ground of a suggested substantial and grave injustice[4].

2.  On 14 December 2023, we dismissed the application. These are our reasons.

3.  It was common ground that on 8 March 2016, the applicant caused the death of a storekeeper, Cheng Ka-pui, at his convenience store in Yau Ma Tei. The applicant is a Canadian Vietnamese who was then visiting Hong Kong. That evening, he entered the store three times. On the first occasion, he stayed for a short while and left. A few minutes later, he returned and took a packet of tissues and a can of potato chips from the store without paying. He was confronted by the storekeeper to whom he responded with an offensive gesture and by eating the chips. The applicant then went to a nearby supermarket from which he took a knife. He returned to the store, slammed the knife on the cashier counter and shouted at Mr Cheng, several times saying “You’re gonna die.” There was a scuffle and the applicant inflicted a deep stab wound with the knife in Mr Cheng’s chest. There was evidence that this was a frantic attack of such force as to cause the blade of the knife to detach from its handle. The applicant then left the scene. Mr Cheng died from the stab wound a few days later. The applicant’s visits to the store and his interaction with the storekeeper were recorded on CCTV.

4.  The applicant was arrested the following day. He said that he had stabbed the deceased because he was possessed by demons.

5.  At trial, a number of defences were advanced. The only one with which this application is concerned is the defence of provocation. That too was the sole issue argued before the Court of Appeal.

6.  According to the applicant’s testimony at trial, the conduct which provoked the stabbing was an attack by the deceased upon the applicant during the third visit when, so the applicant said, the deceased rained punches upon him, including a punch to the face. This was disputed by the prosecution and was not supported by the CCTV recording.

7.  It was also asserted at trial that the personal circumstances in which the applicant found himself at the material time were intensely frustrating. He had been thwarted in his attempt to enrol as a monk on the Mainland, had returned to Hong Kong with no money, no accommodation and, being at his wits end, was trying to provoke the store owner into calling the police so that he might be arrested and deported to Canada. The store owner in fact called the police and the applicant’s testimony was that he waited outside for the police to arrive but when they did not, he went to the supermarket to obtain a knife.

8.  In the course of her summing up to the jury, the judge, having told the jury first to decide whether there was conduct which made or may have made the applicant lose self-control, said:

“… if you conclude that the defendant was or might have been provoked in the sense which I have explained, then you must firstly 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 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. … 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 with other special characteristics.”

9.  In the absence of the jury, Mr Donald, counsel for the applicant at trial, remarked that the judge had not mentioned anything in relation to the special characteristics of the defendant. The judge asked: “Do we know of any special characteristics of the defendant?” Mr Donald contended that these were the applicant’s suicidal tendencies, his delusional conduct, the fact that he was talking with demons, murmuring to himself, always being on edge and that these were specific characteristics that should be referred to the jury. He did not say how these characteristics were germane to the issue of provocation in this case. The judge commented that these characteristics were discernible from the applicant’s testimony and she declined to provide the further direction requested. We pause to observe that the personality problems particularised by Mr Donald were irrelevant to the objective limb of the provocation defence in this case; first, because the alleged provocative conduct was not directed at those weaknesses and, secondly, in so far as they may have made the applicant more prone to excitability or over-reaction, such susceptibility is not, for the purpose of the defence of provocation, to be attributed to the ordinary sober person.

10.  Mr Bruce SC[5] focused his argument on the failure of the judge to identify special characteristics of the defendant which, he argued, were germane to the issue of provocation, in particular to the objective limb of the defence. He contended that that failure gave rise to a real risk that the jury failed properly to apply the defence of provocation; hence the contention that there has been occasioned substantial and grave injustice. The submission was that the gravity of the provocation for the purpose of the objective limb of the provocation defence had to be assessed by the jury in the light of the following features or characteristics: the applicant’s failed quest to become a monk; his impecuniosity; having to sleep at McDonalds; his belief that arrest was the route to repatriation and being at his wit’s end.

11.  Although these are not the characteristics upon which Mr Donald relied on in his invitation to the trial judge to provide directions on special characteristics - indeed, they are not characteristics but circumstances - they are the same circumstances relied upon before the Court of Appeal. In dismissing the application for leave to appeal against conviction, the Court of Appeal was satisfied that the jury was fully apprised of all relevant matters which went to the question whether the applicant might have lost control and in relation to the objective limb of the defence, which was the main thrust of the application before that Court, remarked that the applicant’s history had been fully addressed by counsel and fairly summarised for the jury who were therefore well able to assess the gravity of the provocation for a person similarly placed in the situation in which the applicant had found himself.

12.  The core question is how, if at all, the applicant’s frustrating personal circumstances at the time of the killing were germane to the objective limb of the defence of provocation. The provocative conduct was not directed at those circumstances, such as a taunt about his impoverished condition. It is correct that the possible reaction of the reasonable person to the provocation experienced must be assessed in proper context, in other words, by reference to a reasonable person placed in the overall circumstances in which a defendant found himself. However, the history, experiences, background, features and attributes of a defendant which are to be taken into account must be those which are relevant to the provocation: see HKSAR v Liang Yaoqiang (2017) 20 HKCFAR 1 at [47]. The fact that the applicant was at a low ebb was likely to go to the question whether he lost self-control but not, in this case, to the gravity of the provocative act; unlike the case where an insult or act is given special or added significance because of a characteristic at which the insult is directed or because of the history of a relationship. As the Court of Appeal correctly pointed out, “given that the provocative conduct, according to the applicant, only related to the punches, … it would not appear to matter much how contextualising such punches (that is, the punches were delivered to a person placed in the applicant’s situation) would have materially affected the jury’s assessment of the gravity of the provocation.”[6]

13.  In the event, the judge’s reference to special characteristics in the context of the objective test was, with respect, inappropriate. Nevertheless, unnecessarily telling the jury to take the applicant’s special characteristics and peculiarities into account did not enure to the applicant’s disadvantage; neither did the failure at that point to spell them out, given their emphasis by defence counsel’s speech and the judge’s summary of the evidence. But in any event, as against that single reference to special characteristics, it is significant that in her concluding directions to the jury on the topic of provocation, the judge encapsulated the objective test to be applied, namely, to place an ordinary person in the same situation as the applicant and to decide whether an ordinary person of the applicant’s age and sex would or might have done what he did. That concluding reference to age and sex was shorn of any reference to peculiarities or special characteristics and, thus shorn, was twice stated and was the correct test in this case.

14.  The Court of Appeal declined an application to adduce fresh evidence, namely, the report of a psychiatrist to the effect that, in his opinion, the applicant was suffering from a mental disorder at the time of the offence. Mr Bruce contended that the Court of Appeal erred in refusing to admit that evidence. We have that report. It concluded that at the time of the killing, the defendant suffered a mental disease which caused abnormality of the mind which in turn reduced his self-control and that his condition substantially diminished his responsibility for the alleged acts. Mr Bruce submitted that the applicant’s mental illness was a characteristic to be attributed to the hypothetical reasonable person when judging how that person might have reacted to the provocation offered. This is an untenable submission because not only was suggested mental infirmity of the applicant not the subject of the provocation offered but, more particularly, this impermissibly seeks to incorporate the concept of diminished responsibility indirectly into the law of provocation: see Luc Thiet Thuan v R [1996] 2 HKCLR 45.

15.  For these reasons, we concluded that the grounds upon which the application was based were not reasonably arguable.