HKSAR v. KONG KWONG SAN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 135
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant was convicted of murder after a trial in the High Court before Wong, J. and a jury. He now seeks leave to appeal against this conviction.

2. The case was a rather unusual one. According to the prosecution case the Applicant made a 999 emergency call to the police shortly after 1:00 p.m. on 10th May 1997. A party of police officers attended at the address given at King Street, Hong Kong where they saw the Applicant. He told them that he had killed someone but that he had been forced to do so. He admitted that it had been he who had made the telephone call to them. He said that he had stabbed his friend Tsang Wai-ming (the Deceased) with the knife he had left at the head of his bed. The officers entered the flat and saw the mortal remains of the Deceased in a pool of blood. The Applicant was arrested and because of an injury to his hand he was taken first to the Tang Shiu Kin Hospital and then to the Queen Mary Hospital. He made an initial short cautioned statement along these lines:

"It was he who pressed me very hard. I have no way out. He stated clearly stated that I must die, because of that, I took the step to stab him with knife."

3. Later at the hospital he made an inculpatory cautioned statement in which he gave a detailed description of events which had preceded the Deceased's death.

4. It was apparent from this statement that the Applicant and the Deceased had been gambling together for some time and that prior to the day in question the Applicant owed to the Deceased something of the order of $150,000. According to the statement the Applicant won $60,000 at a card game that morning and requested that the moneys be deducted from the moneys he owed the Deceased. The Deceased wanted to continue gambling at higher stakes and the Applicant refused to do so initially. There was then a heated dispute. At about 1:00 p.m. the Deceased went to the toilet to urinate. The Applicant picked up a fruit knife which he saw in the bedroom and followed the Deceased into the toilet and stabbed him in the back. A struggle ensued during which the Applicant's hand was injured by the knife. During the struggle the Deceased said, "Please don't kill me - I will give all the money back to you". He continued to stab the Deceased. He discarded his socks and shirt and took one of the Deceased's shirts. It was subsequent to this that he made a report to the police.

5. At the trial the Applicant contested the admissibility of his lengthy statement. He also went into the witness box and gave a significantly different version as to what had transpired prior to the stabbing.

6. The Judge gave detailed directions on self-defence, provocation and diminished responsibility.

7. There are four perfected grounds of appeal in the amended grounds of appeal.

8. Grounds 1 and 1A are as follows:

"1. The Learned Trial Judge erred in law in failing to direct the Jury that on the issue of provocation they should consider:

(a) not only a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused but also a person in other respects sharing such of the accused's characteristics as they think would effect the gravity of the provocation to him, and/or

(b) personal history or other circumstances affecting the gravity of the provocation on an ordinary man of the Applicant's age.

1A. The learned Trial Judge erred in failing to specifically direct the Jury to consider on the issue of provocation:

(a) the entire history prior to the events of 10th May,

(b) provocative words issued by persons other than the deceased."

9. The directions given to the jury in this connection can be divided into two parts. The first were the directions given in the summing-up and the second were further directions given in response to a query which was raised by the jury during their deliberations.

10. The original directions were in this form.

"Now, I deal with provocation first. Provocation is some act or series of acts done or words spoken which causes the accused a sudden and temporary loss of self-control, and which would cause a reasonable person to lose his self-control and to behave as the accused did. Therefore, you have to consider two questions. One, did the allegedly provoking conduct cause the accused to lose his self-control? Two, might that conduct have caused a reasonable person to lose his self-control and to behave as the accused did? As to the second question, take into account that things said and done according to the effect which, in your opinion, it would have on a reasonable man. A reasonable man is a person having the powers of control to be expected of an ordinary person of the sex and age of the accused. Because the prosecution must prove the accused's guilt, it is not for him to prove that he was provoked. The prosecution must make you sure that the accused was not so provoked before you can convict him of murder. If you are satisfied that he was provoked or if you think that he may have been provoked, then you can only convict him of manslaughter."

11. The question posed by the jury was:

"Members of jury have some doubts on the definition of 'provocation'. If there has been a lapse of time between the provoked act and the killing, shall the principle of provocation still apply?"

12. The Judge's reply was along these lines:

"The simple answer is that it still applies, but of course, it is a question of fact for you. And, so you heard the evidence, you will bear in mind that evidence and you apply the definition of 'provocation'. Perhaps I repeat the definition of 'provocation' once again.

'Provocation: Some act or series of acts done and words spoken which causes in the accused a sudden and temporary loss of self-control, and which would cause a reasonable person to lose their self-control and to behave as the accused did.'

Now, I repeat what I said this morning, therefore you have to consider two questions. (1) Did the allegedly provoking conduct cause the accused to lose self-control? And (2) Might that conduct have caused a reasonable person to lose their self-control and to behave as the accused did? These are the two questions to ask yourselves, bearing in mind the evidence you have heard ..."

"Now, as to the second question, take into account everything said and done according to the effect which, in your opinion, it would have on a reasonable man. A reasonable man is a person having a power of control, to be expected of an ordinary person of the sex and age of the accused. Then it is for the prosecution to prove to you that the accused was not provoked."

13. Mr. Loughran for the Applicant submitted that these directions were inadequate as they failed to direct the jury sufficiently on the definition of "a reasonable man".

14. Mr. Loughran argued that the Judge should have defined "a reasonable man" as being:

"a person having the power and self-control to be expected of an ordinary person of the sex and age of the accused but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him; and that the question is not merely whether such a person would in such circumstances be provoked to lose his self-control but also whether he would react to the provocation as the accused did"

15. This was in accordance with the direction proposed by the House of Lords in DPP v. Camplin [1978] A.C. 705.

16. Mr. Loughran accepted however that the law on this subject was by no means clear. In addition to DPP. v. Camplin he also referred to R. v. Newell [1980] 71 Cr. App. R 331, R. v. Ahluwalia [1993] 96 Cr. App. R 133, R. v. Dryden [1995] 4 AER 987, R. v. Humphreys [1995] 4 AER 1008, Sara Elizabeth Thornton (No. 2) [1996] 2 Cr. App. R 108, R. v. Morhall (HL) [1996] 1 A.C. 90, Luc Thiet Thuan v. R. [1997] A.C. 131 (P.C.) & R. v. Campbell (No. 2) [1997] Crim. L.R. 227.

17. One of the difficulties encountered in analysing these cases was the apparent different approach adopted by the House of Lords and the Privy Council on the one part and the English Court of Appeal on the other part.

18. He contended however it was possible to draw from these cases two propositions. The first was if any characteristic existed which distinguished a defendant from a normal reasonable man the Judge should refer the jury to this in his summing-up and direct them to take cognisance of the characteristic when attempting to determine whether the defendant had been provoked.

19. The second proposition was that provocation would much more readily be assumed to have arisen if the taunts or acts complained of were directed towards the characteristic relevant to the defendant. Mr. Loughran appeared to accept that he was on more tenuous ground in relation to this proposition than he was on the first.

20. Mr. Loughran submitted that the question which then has to be considered is whether there were any particular characteristics or circumstances peculiar to this Applicant.

21. There was the evidence of Dr. Chung and Dr. Ho concerning the Applicant's "adjustment disorder". This evidence was contested by Dr. Yuen on behalf of the prosecution. The Judge dealt with this in his directions on diminished responsibility.

22. The evidence of the doctors referred to a general state of anxiety or tension. The provocation if it existed related to the Deceased's desire to continue gambling for high stakes and his threats to harm the Applicant and his family if he refused to do so. There was also the Deceased's refusal to give the Applicant credit in financial terms to what he felt he was entitled to. There was also the verbal abuse and threats.

23. Mr. Loughran contended that it was apparent from the medical evidence that the conduct amounting to provocation was relevant to the Applicant's medical condition and was of a nature to undermine the Applicant's self control.

24. Mr. Chapman for the prosecution submitted that this was not a case requiring a direction along the lines of Lord Diplock's speech in Camplin. He referred to Lord Goff's analysis of the law in his speech in Luc Thiet Thuan v. R. [1997] A.C. 131 (P.C.). After considering all of the relevant cases Lord Goff states at p. 144:

"In these circumstances their Lordships return to the interpretation placed on the English statute in Reg v. Camplin [1978] A.C. 705 for guidance in answering the question posed for their consideration in the present case. Their conclusion is that, on the principles there stated, there is no basis upon which mental infirmity on the part of the defendant which has the effect of reducing his powers of self-control below that to be expected of an ordinary person can, as such, be attributed to the ordinary person for the purposes of the objective test in provocation."

25. He then goes on at p. 146 to say:

"Their Lordships have reached the foregoing conclusion as a matter of construction of the Homicide Act 1957 (and therefore of the Hong Kong Ordinance). But they are, like the Court of Appeal of Hong Kong, fortified in that view by reference to the defence of diminished responsibility introduced into English law by section 2 of the same Act, and into Hong Kong law by section 3 of the same Ordinance. To accept the defendant's submission would, in their Lordships' opinion, be to incorporate the concept of diminished responsibility indirectly into the law of provocation. Such a conclusion is most unlikely to have been intended by the legislature which, in a neighbouring section in the same statute, introduced diminished responsibility as a defence of general application in the law of murder, and moreover did so subject to the imposition of a special rule relating to the burden of proof, viz. that the burden of establishing diminished responsibility should rest upon the defendant, though it should be the civil burden. If diminished responsibility were held to form part of the law of provocation, the extraordinary result would follow that a defendant who failed to establish diminished responsibility on the burden of proof placed upon him by section 2 of the Act of 1957 might nevertheless be able to succeed on the defence of provocation (as recognised in section 3) on the basis that, on precisely the same evidence, the prosecution had failed to negative, on the criminal burden, that he was suffering from a mental infirmity affecting his self-control which must be attributed to the reasonable man for the purposes of the objective test. This was precisely the result for which the defendant was contending before their Lordships. They do not consider that this could have been the intention of the legislature. But their Lordships wish to add that the recognition by the legislature of the defence of diminished responsibility gives a defendant suffering from abnormality of mind the opportunity to establish a defence upon which a very wide interpretation has been placed by the courts and which, if proved, has like provocation the effect of reducing to manslaughter what would otherwise be murder. For the courts, in interpreting section 2 of the Act, have given to the words 'abnormality of mind' a very broad meaning, wide enough to embrace not only cases of 'irresistible impulse,' but also those cases in which the difficulty of the defendant in controlling (or rather failing to control) his behaviour was 'substantially greater than would be experienced in like circumstances by an ordinary man, not suffering from mental abnormality:' see Smith & Hogan, Criminal Law, 7th ed. (1992), p. 213, referring in particular to Reg. v. Byrne [1960] 2 Q.B. 396, 403, per Lord Parker C.J. It follows that the spur which has occasioned the developments in New Zealand law culminating in the judgment of Sir Robin Cooke P. in Reg v. McCarthy [1992] 2 N.Z.L.R. 550, to which their Lordships have referred, does not exist, at least to the same extent, in the law of England or the law of Hong Kong."

26. We have no doubt that this statement of the law is correct and is applicable to the present case. In saying this we have not overlooked the English Court of Appeal case of R. v. Smith [1998] 4 All ER 387. In this case the Court appear not to have followed Luc Thiet Thuan. Potts J. who delivered the Judgment of the court states at p. 399:

"In our judgment the trial judge was wrong to rule and direct the jury as he did. The evidence of Drs Hamilton and Campbell as summarised above ought to have been left to the jury for their consideration. The judge ought to have directed the jury that the evidence of Drs Hamilton and Campbell as to the appellant's mental state, and its impact on his response to provocation, depending on what the jury made of it, was relevant to the objective requirement of provocation. 'May the hypothetical reasonable man possessing the appellant's characteristics as found by the jury have reacted to the provocative conduct so to do what the appellant did?' We have not overlooked the fact that by their verdict the jury rejected the defence of diminished responsibility and must therefore have not been satisfied to the requisite standard of the evidence of Drs Campbell and Hamilton. On this issue, however, the onus of proof was on the appellant. On the issue of provocation it was for the Crown to satisfy the jury that the appellant had not been provoked. In these circumstances, and against the whole background of the evidence in this case, we are of the view that the judge's misdirection renders the appellant's conviction for murder unsafe. This ground of appeal therefore succeeds."

27. We do not consider this case to be binding upon us. We not only prefer the approach adopted by Lord Goff but we are bound by it. For the reasons he gave we consider that it is unsatisfactory that a defendant should be able to avail himself of similar evidence to pursue the alternative defences of provocation and diminished responsibility.

28. We would add that as in this case there are no relevant characteristics which should be considered by the jury the direction recommended in Camplin should not be adopted.

29. The remaining complaint made in these grounds is the alleged failure of the Judge to sufficiently direct the jury to take cognisance of all of the background circumstances and history of the Applicant when deciding whether the Applicant as "a reasonable man" would have been provoked by the Deceased's conduct.

30. It is apparent from reading the summing-up as a whole that although the Judge did refer in considerable detail to all of the relevant background and history he did not specifically direct the jury that when they were determining the issue of provocation they should bear these matters in mind. There is however nothing in the summing-up to indicate that these matters were separate and discreet and as a matter of common sense it would have been obvious that the issue of provocation could not be considered in isolation. All of the background and history would have been relevant to this issue. We would add however that it would have been helpful if the Judge had been more specific.

31. For the reasons we have given these grounds cannot be sustained.

32. The 2nd ground is that:

"The verdict is unsafe and unsatisfactory having regard to the continuous length of time (10 1/2 hours approximately) involved in, and lateness in the evening (8:30 p.m. approximately on 23rd February 1998) of the jury's attention and deliberations."

33. At 8:00 p.m. the Judge entertained an application from Mr. Buchanan who applied for the jury to discontinue their deliberations that evening and to resume them the next day. The Judge considered the application and was satisfied in all the circumstances that the jury could continue their deliberations for another half hour. The jury indicated that they were able to reach a verdict shortly before the expiration of this period. The Judge was exercising a discretion reposed in him and we can see no reason to interfere with this. This ground has no merit.

34. The 3rd ground is that:

"The learned Trial Judge erred in law and/or fact in admitting into evidence photographs of the deceased of a prejudicially horrific nature without no, or no sufficient, accompanying probative value." (SIC)

35. Mr. Buchanan made an application to the Judge that the photographs of the Deceased's body taken in the mortuary should not be shown to the jury.

36. The Judge was satisfied that the usual practice of making such photographs available should not be departed from. The photographs might be of some assistance, particularly on the issue of self defence but also in relation to intent, in indicating the nature of the wounds inflicted upon the Deceased. This may well have been illuminating on the issue of self defence and in the matter generally. We can see no merit in this ground of appeal.

37. The conviction was in no way unsafe or unsatisfactory and this application is dismissed.

38. Before leaving this application we wish to observe that a considerable amount of time and effort was wasted as a result of our not having the advantage of a skeleton argument from the Prosecution. We hope that in future in a case such as this we will be furnished with a skeleton argument in sufficient time to enable us to ascertain the issues which are to be ventilated.