THE QUEEN v. HO ON

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Reasons Handed Down: 16 April 1985

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JUDGMENT

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Silke, J.A.:

1. On the 2nd July 1982 CHAN Kuk-por was killed on a hillside near the village of To Chi Kin Tsuen, Tai Po.

2. On the 17th August 1984 HO On - "the appellant" - was convicted of his murder. He sought leave to appeal against that conviction.

3. We dismissed the application for leave to appeal and stated we would give our reasons later. This we now do.

Crown Case

4. The deceased was the nephew of a for CHUNG Tat-chi. They were new comers to the village and, just outside it, they ran a black grass jelly factory. Two weeks before the 2nd July the appellant approached Mr. Chung and asked him for $50 as "tea money or as protection". The appellant had introduced himself as "On Chai”. He was paid.

5. On the 2nd July the deceased and Mr. Chung were working on a path outside the factory. A group of village youths came up and started to play cards. The deceased joined in the game which fasted for about half an hour. Then the appellant and a youth named LIU arrived on the scene. They approached. Mr. Chung and the appellant asked him for money to buy a meal. Mr. Chung refused the money, requested them to leave and went off to get on with his work. The appellant and LIU stayed around talking to each other.

6. From his work place Mr. Chum became aware of a disturbance and of a dispute taking place between the deceased, the appellant and LIU. As he was hard of hearing he was not aware of the nature of this dispute. He saw the deceased holding a wooden board chasing LIU up a nearby path and the appellant running after them both. He followed calling out to the deceased to drop the wooden board and to stop running.

7. The deceased stopped at the roadway which was above the factory path. It was Mr. Chung's evidence that he took the wooden board from the deceased and that the appellant and LIU both came up to the deceased and the deceased and LIU had a physical struggle. Mr. Chung saw the appellant holding a "10 inch long knife". Mr. Chung became alarmed and went off to telephone the police.

8. A village youth, Poon, who was nearby saw the appellant attacking the deceased with his knife. The deceased picked up an empty 4 gallon kerosene tin striking the appellant five or six times with it.

9. Then LIU came up behind the deceased and threw his arms around his neck. The deceased dropped the car and tried to free himself from LIU. It was at that point that the appellant came up to the deceased and stabbed him.

10. Mr. Chung returned from his telephone call and saw LIU still holding the deceased and, the appellant with a bloodstained knife. The appellant and LIU ran away.

Defence

11. The "justifications" put forward at trial were self-defence and provocation - with a gloss of accident. The appellant gave evidence or his own behalf. He denied the demand from Mr. Chung of $50. He agreed that he and LIU had approached Mr. Chung on 2nd July for the loan of some money in order to buy some "soong' to go with rice which LIU had beer cooking. They were refused and they waited around. Suddenly, for no reason at all, the deceased came up from below the path, picked up a piece of timber and struck LIU and then the appellant with it.

12. The deceased chased LIU up the path to the road and the appellant deciding he wanted a weapon of some kind, chanced upon a knife lying in a field by the path and picked it up intending, he said, merely to threaten the deceased. He put the knife into his pocket when he saw Mr. Chung attempting to dissuade the deceased from carrying the piece of wood. Mr. Chung's attempt was not successful, and after an exchange of challenges between himself and the deceased, the deceased lashed out with the wood hitting the appellant on the arm.

13. The appellant fell down the slope and saw both the deceased and LIU tumbling down after him. The appellant went aside to bandage his arm which had been injured by the blow from the deceased and, while he was doing so, the deceased rushed at trim with a kerosene tin and hit him. The knife fell out of his pocket and he picked it up in, order to defend himself. In the process, and without any intention of killing the deceased, he thrust at him without force with the knife which entered the chest of the deceased. Even after receiving the stab wound the deceased continued to strike the appellant with the kerosene tin. It was only at that point that LIU came up and put his arm around the deceased's neck.

14. The appellant, seeing blood on the body of the deceased, told LIU to desist and they both went away.

Statement

15. The appellant was arrested some eighteen months later and made statements to the police. Discrepancies between those statements and the evidence he gave in Court were drawn to his attention. One passage in particular which went as follows:

"I was also hit by the deceased once with a stick, and I fell onto the field. I (then) got up and I was very angry at that time. Then I picked (up) a knife from the field, cent over to the deceased, and stabbed him once with, the knife. The deceased then fell down."

was put to him in the course of cross-examination. The appellant denied that this was true and said that he had told the police that it was the deceased who rushed towards him, rather than the opposite.

Provocation

16. On his mental state the evidence giver by the accused varied somewhat. He strongly denied any intention of stabbing the deceased. He deonied that he had become very angry and stabbed as an act of revenge. When it was put specifically to him by Mr. Moorfoot, who appeared for the Crown at trial:

the appellant answered:

17. He was further questioned on the issue of his anger and he said that he was very angry and had stabbed the deceased. Immediately after that he also said:

"He hit me, well, 'Don't hit any more, don't rush towards me', that's all, I don't know whether I was angry or not."

18. In re-examination by Mr. Yeung he said when asked as to anger:

"Yes, naturally I was angry but not very angry to the extent that I used abusive language mot the kind of anger coupled with emotion."

19. In answer to the trial judge, who was clearly concerned as to the mental state of the accused, he said:

"Well, naturally I was angry because I was being hit by him in this manner. Being angry is one thing. Thrusting forward is another. I did not intend to stab him."

20. The trial judge left both self-defence and provocation to the jury. No complaint is made in respect of the directions or self-defence but issue is taken with those on provocation on two rounds: first that the Judge failed to direct the jury that they were entitled to disregard an express denial of loss of control on the part of the accused and should consider whether the evidence as a whole suggests provocation in law. Second: that the Judge had effectively and wrongly withdrawn the issue of provocation from the jury because of the way in which he summed up the case to the jury.

21. The Judge advised the jury that they had to bear in mind the evidence that was given by the accused and his statements and directed them that mere anger was insufficient. Having told them that, if they thought it was reasonably possible that the appellant was provoked so as to lose his self-control, then they should go on to ask themselves whether a reasonable person - and he explained what was meant by this - in the same circumstances of provocation as those to which they found the appellant to have beer subjected, would not only have bean provoked to lose his self-control but would also have reacted to the provocation as the appellant did.

22. Mr. Yeung took issue with the trial judge's reference to the contention of the Crown that provocation was not a live issue and his further direction:

"If you think that no such reasonable person would have been provoked by those circumstances to lose his self-control and have reacted as the accused did then the defence of provocation fails."

23. Mr. Yeung contends that these two portions of the summing-up effectively withdrew provocation from the jury.

24. He cited in support LEE Chun Chuen v. The Queen ⁽¹⁾ and that which was said by Lord Devlin in giving the Reasons of the Board :

"Their Lordships agree that the failure by the accused to testify to loss of self-control is rot fatal to his case."

25. The appellant by reason of the defences advanced by him had placed himself in something of a dilemma. But he should not be penalized for this. Lord Devlin continued:

"The facts can 'speak for themselves and, if they suggest a possible loss of self-control, a jury would be entitled to disregard even an express denial of loss of temper especially when the nature of the main defence would account for the falsehood.  An accused is not to be convicted because he has lied."

26. Although the trial judge did not direct the jury specifically in those terms, his general directions, and a further direction to the effect that, if they were to come to a verdict of manslaughter, then they "must conscientiously do so on the basis that you think that possibly manslaughter reasonably arises on the evidence, and that it is not there just as some sort of compromises", were sufficient to instruct the jury to consider the whole of the evidence and did not have the effect of withdrawing provocation from the jury.

Burden of Proof

27. The second main point, and it is to some extent at least involved with the first, was stated by Mr. Yeung in his grounds thus:

and he made complaint of the use by the trial judge of the expression "defence"

28. At the commencement of the summing-up the trial judge had given a wholly unexceptional direction upon the burden of proof. When he came to deal with provocation he said this:

"I would like to emphasize at this stage, members of the jury, that whenever a defence arises it is incumbent upon the Crown to negative that defence. Both Counsel have told you that, but it is my duty to tell you personally that it is the law that the Crown must not only prove that the accused killed the deceased with the intention of killing him or with the intention of causing grievous bodily injury, but that the Crown must also negative any defence that arises on the evidence."

29. We have been referred to McPherson⁽²⁾and Abraham ⁽³⁾ and to Wheeler⁽⁴⁾, cited in Abraham⁽³⁾. In MicPherson⁽²⁾ Lord Goddard, L.C.J. laid emphasis upon the difference between leading evidence which would enable a jury to find an issue in favour of the defendant and putting an onus upon him. He said that the jury must come to its verdict on the whole of the evidence laid before them. If they are left in doubt whether the killing may or may not have been provoked a proper verdict would be not guilty of murder.

30. The Lord Chief Justice cited Prince⁽⁵⁾ and its headnote which stated:

"On a trial for murder, the fury should be directed that, if upon a review of all the evidence they are left in reasonable doubt as to whether, even if the prisoner’s explanation is not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted."

31. Wheeler^(4a) emphasized that it is essential that the jury should understand that none of those issues of justification are properly to be regarded as defences.

32. The trial judge directed the jury that it was incumbent upon the Crown to negative provocation. He did advise the jury that, if they thought it "reasonably possible" that the appellant was provoked so as to lose his self-control, the verdict would be manslaughter although he did not say that any doubt the jury might have in their minds should be resolved in favour of the accused and he referred to provocation or a number of occasions, as a "defence".

33. Each summing-up must have relation to the nature of the case and to the evidence adduced. If the jury accepted the evidence of the prosecution, the killing was clearly murder. Mr. Yeung in argument before us was in some understandable difficulty in advising as to what was the main "defence" raised at trial. In hindsight, as he quite fairly said, it should have been provocation. But both self-defence and provocation were run at trial, the latter in a somewhat half hearted manner. However, viewing the summing-up as a whole, the jury cannot have been left in any doubt as to where the burden of proof lies or provocation and the standard of its discharge. Similarly the use of the expression "defence" would be wholly wrong only if the jury are being, in effect, told that there is an onus or an accused to establish provocation.

(1)    [1963] A.C. 220

(2)    [1957] 41 Cr.App. R. 213

(3)    [1973] 51 Cr.App.R. 799

(4)    [1967] 52 Cr.App.R. 28

(5)    [1941] 3 All E.R. 37