THE QUEEN v. VU VAN THANG AND ANOTHER

Criminal law - homicide - summing up - defence of provocation not raised at the trial - whether on the evidence before the court, the judge should have left issue of provocation to the jury - s.4 Homicide Ordinance, Cap. 339.

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REASONS FOR JUDGMENT

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Clough, J.A.:

1. On the 3rd July 1991 this court dismissed the appeal of VU Van Thang (D1) and refused the application of BUI Minh Duc (D2) for leave to appeal against their convictions, after trial by Ryan J. and a jury, of the murder of DOAN Van Hung ("the victim") on the 29th May 1989 at Camp C, Shamshuipo Closed Centre, Lai Chi Kok Road, Kowloon. We reserved our reasons which we now give.

2. The victim was found dead early in the morning of the 29th May 1989 at the Shamshuipo Centre. He had sustained several chop wounds and a stab wound. The cause of death was cut wounds of` the neck. His wounds were described by the judge in his summing up (by reference to photographs in evidence) as horrific. The principal evidence for the Crown was that of an eye witness to the crime and the cautioned statements made by D1 and D2 to the police.

3. The Crown relied on the evidence of an eye witness PHAM Anh-dung (PW4), who was living in the Centre at the time. His evidence was to the following effect. He spoke with the victim at about 6.40 a.m. on the morning in question. Shortly afterwards he heard a commotion and when he looked out of the window in his dormitory next to his bed he saw Dl holding an axe with which he chopped at the waist area of the victim's back. The victim then took a few steps and fell across a ditch outside PW4's dormitory. PW4 saw D2 at one side of the dormitory. D2 jumped over the ditch and used both his hands to seize the victim's head (which was then turned to one side) and turn it face down to the ground. D1 then ran forward holding the axe, jumped over the ditch and chopped the victim three or four times across the back of his neck, D2 letting go of his neck after the first blow. Dl and D2 then made off in the direction of another dormitory in the Centre.

4. At the trial the judge admitted in evidence a number of cautioned statements made to the police by D1 including a statement he made on the 30th May 1989 admitting that he had used an axe to chop the victim to death. Several cautioned statements by D2 to the police were also admitted. In two of these statements, made on the 11th June 1989, D2 admitted his presence at the scene of the crime but denied being involved in the murder.

5. D1 elected not to give evidence. His defence included an alibi that at 7 a.m. on the 29th May 1989 he was at home in bed with his wife and child at the Tuen Mun Refugee Camp. He called a witness, Madam Dang, in support of his alibi. It was his defence that he had not been at the scene of the crime and that PW4 had either fabricated his evidence against Dl or made a genuine mistake. It was also his defence that no weight should be given to his cautioned statements to the police because he had been  physically assaulted before signing them and that they were fabricated and not directly recorded in his own language but in Chinese. No defence of provocation was raised by D1's counsel Mr. Nguyen, nor did the judge direct the jury that there was any evidence requiring them to consider the possibility of such a defence.

6. D2 also elected not to give evidence. His defence was that, as he had stated in his cautioned statements, although he had been in the vicinity of the scene of the crime he had taken no part in the murder. The crucial evidence of PW4 implicating him was contended to have been fabricated to enhance PW4's emigration prospects or for malicious reasons, or more likely by reason of genuine mistake.

D1's appeal

7. D1 applied for leave to appeal against his conviction upon grounds framed by him in his notice of application. However at the hearing (which the count, with the consent of the Crown, treated as the hearing of Dl's appeal upon the footing that leave to appeal had been granted) Mr. Nguyen confined his submissions to the one perfected ground settled by him. This was that the trial judge had wrongly withdrawn the issue of provocation from the jury when in D1's cautioned statement made on the 30th May 1989 there was evidence upon which the jury could have found that D1 was provoked to lose his self control. It was contended that the issue of provocation should therefore have been left with the jury under section 4 of . the Homicide Ordinance (Cap. 339).

8. The fact that neither Dl nor his counsel adverted at the trial to a defence of provocation does not relieve the judge of his duty to direct the jury to consider such a defence if there is material which justifies such a direction: Mancini v. D.P.P [1942] AC 1 (H.L.). If there was such material fit for the jury's consideration raising the issue of  provocation then the judge was under a duty to direct the jury accordingly. By reason of his failure to do so it would be the duty of this court, if it did not apply the proviso to section 83(1) of the Criminal Procedure Ordinance (Cap. 221), to quash D1's conviction for murder and substitute a conviction for manslaughter.

9. For D1 Mr. Nguyen relied on material in D1's cautioned statement made on the 30th May 1989 which he contended was sufficient to require the judge to leave the issue of provocation to the jury. D1 had described how he and D2 had gone to the Shamshuipo Closed Centre on the night of the 28th May. He then said (referring to D2 as "TUC Chai" and to the victim as "Ah HUNG"):

"I remember that it was around 11 pm when the 2 of us were drinking beer and eating beef noodle at a stall in the camp. It was not until near dawn, when I and TUC Chai walked to the outside of one dormitory to wash our faces, i.e. the location (deletion) where Ah HUNG was chopped dead. There (I) saw the deceased. At that moment I was very angry because about one month ago at Shamshuipo Playground he chased me with a view to chopping me with a knife but I managed to run away from him. Then I went to find weapon to beat him. As a result I found the axe near a tree, then I chopped him."

10. This passage gave rise to the following questions and answers recorded in the same cautioned statement:

11. Mr. Nguyen accepted that there was no evidence that on the morning the victim was killed he had said or done anything to provoke Dl. However he contended that provocation could at law be inferred on the basis that when D1 saw the victim, previous events, including the attempted assault of D1 by the victim in the previous month, rushed back into his memory and caused him to be provoked and lose his self control. Mr. Nguyen felt constrained to acknowledge that there was no authority to support a provocation defence where there was, as here, a time span of at least a month between the alleged act of provocation and the alleged loss of self control.  It seemed to us that in this case the alleged acts of provocation by the victim were far too remote from the fatal acts of D1 at least a month later to justify a direction by the judge that there was sufficient material to require them to consider whether D1 might reasonably have a defence of provocation.

12. The matter is governed by section 4 of the Homicide Ordinance which is in the same terms as section 3 of the Homicide Act 1957, and provides:

"4. Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the Jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonably man."

13. The effect of that provision on the common law doctrine of provocation as been considered by Lord Diplock in Phillips v. The Queen  [1969] 2 AC 130(P.C.) in relation to the Jamaican equivalent of section 4 of the Homicide Ordinance, and in Reg. v. Camplin [1978] AC 705(H.L.) in relation to section 3 of the Homicide Act.1957. In Phillips Lord Diplock said at p.137C-D:

We have supplied the emphasis in both these citations.

14. C1ealy the judge is entitled to withdraw from the jury Lord Diplock's first question in Phillips, "Was the defendant provoked into losing his self control?" if there is no evidence upon which a jury could answer this question in the affirmative. It is the second question "Would a reasonable man have reacted to the same provocation in the same way as the defendant did?" which section 4 of the homicide ordinance requires the judge to leave to the jury.

15. The common law meaning of provocation is only affected by section 4 of the Homicide Ordinance to the extent indicated in the above citations from Lord Diplock. In what Lord Goddard described in Duffy [1949]1 All ER 932 as a classic direction to a jury, Lord Devlin (as Devlin J.) defined provocation (as quoted by Lord Goddard at p.932E) thus:

"Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind." (Emphasis supplied)

Later in his summing up Lord Devlin (quoted by Lord Goddard at p.932H):observed:

"Indeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person has had time to think, to reflect, and that would negative a sudden temporary loss of self control which is of the essence of provocation." (Emphasis supplied)

16. The subjective condition in Lord Devlin's definition of provocation requiring that there must be "a sudden and temporary loss of self-control" caused to the defendant is not affected by section 4 of the Homicide Ordinance. This was recognised in Whitfield (1976) 63 Cr. App. R.39, 42 and in Ibrams (1982)74 Cr. App. R.154. In the latter case the last act of provocation occurred on a Sunday and the killing occurred on the following Friday. Delivering the judgment of the Court of Appeal, Lawton L.J. held that in the dictum of Lord Diplock in Camplin, which we have cited and emphasised above, he had indicated that he thought that the loss of control must occur at or about the time of the act of provocation. We respectfully agree. We also agree with the application in Ibrams of the passages cited above from Duffy and with the comment on the subjective condition required for provocation made in Smith and Hogan on Criminal Law, 6th edition at pp.335-6.

17. In the circumstances of the present case not only was there no question of any evidence that anything said or done by the victim could have caused a sudden and temporary loss of control by Dl, but his statement admitted that he had gone to look for and find a weapon after seeing the victim. It was a clear case of a revenge killing which could not possibly give rise to an issue of provocation.

D2's application for leave to appeal

18. D2's notice of application for leave to appeal against his conviction asserted his innocence and alleged that he had been convicted on false evidence. Mr. Sarony who represented D2 did not adopt anything in the notice of appeal and informed the court that he was unable to raise any ground of appeal on his client's behalf.  D2 had nothing to say when reminded of the grounds contained in his notice of application.

19. There was ample evidence of D2's complicity in the murder and the court could find nothing in the judge's summing up or the record to justify interfering with his conviction. D2's application was accordingly refused.