HKSAR v. LAU KAI HOI

CACC 62/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 62 OF 2011

(ON APPEAL FROM HCCC 368 OF 2009)

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the court):

1. At the hearing, the applicant sought leave to appeal against his conviction on 26 January 2011, after trial by Saw J and a jury, of a single count of murder.

THE TRIAL

2. The applicant stood trial on an indictment that contained two counts, namely:

Count 1 - the murder of Chan Hon Kay on 24 February 2009 outside 259 Tokwawan Road, Hung Hom in Kowloon; and

Count 2 - at the same time and place, unlawfully and maliciously wounding Tai Fung Yee with intent to do her grievous bodily harm.

3. By the unanimous verdicts of the jury the applicant was convicted of both counts.  The application is in respect of the conviction of murder only.

THE PROSECUTION CASE

4. There was no dispute that at about 1 pm on 24 February 2009, outside the Tung Shing Restaurant, the applicant had inflicted cut and stab wound injuries with a knife to both Mr Chan Hon Kay (“Mr Chan”) and his former wife, Madam Tai Fung Yee (“Madam Tai”).  The applicant and Madam Tai had been married but divorced in July 2006.

5. The prosecution case was that the applicant had stabbed his victims as he attacked Mr Chan intending to kill or cause him grievous bodily harm.  Mr Chan and Madam Tai were fellow employees at the nearby premises of BMW.  On that early afternoon the two of them, together with another colleague, Mr Wong, were headed to the Tung Shing Restaurant for lunch.  They were intercepted in that journey by the applicant who launched an attack on Mr Chan with a knife.  Madam Tai intervened and struggled with the applicant, in the course of which struggle she sustained a stab wound to her left thigh.  Mr Chan ran off, but returned soon afterwards to the place where Madam Tai was still struggling with the applicant.  In that struggle she received a cut to her forearm.  Then, the applicant turned on Mr Chan, whom he stabbed in the chest.  Mr Chan fell to the ground, in which position the applicant stabbed him repeatedly with the knife.  Mr Wong and the proprietor of the restaurant, Mr Tsang Kwong Man were witnesses to the attack on Mr Chan.

6. Sergeant 12974, Wong Ching Keung, happened on the unfolding events.  Having seen the applicant stabbing Mr Chan in the chest as he lay prone on his back on the ground, and having heard him say “I am going to stab the fuck of you to death!”, the Sergeant shouted out “Police. Don’t move”.  Then, he rushed forward and grabbed hold of the applicant, forcing him to drop the knife that he held in his hand.  Other police officers attended the scene in response to the Sergeant’s request for assistance.  PC 2808 arrested and cautioned the applicant for the offences of wounding Mr Chan and Madam Tai, in response to which the applicant said:

“ My old lady, I’m sorry. I have hurt you inadvertently. I have got to stab the bastard to death.”

7. Although Mr Chan was taken to hospital by ambulance he died shortly after the attack.  An autopsy revealed that he had been stabbed and cut no less than 31 times.  Many of those wounds were to his chest and torso.  It was the forensic pathologist’s opinion that the cause of death was profuse haemorrhaging and respiratory dysfunction, resulting from a stab wound to the upper left front of the chest, which caused significant injuries to the left arm, major blood vessels and left lung.

8. Later on, in the evening of that day, the applicant was questioned after caution in a video recorded interview at Hung Hom Police Station.  On the following day, 25 February 2009, the applicant was interviewed in similar fashion on two further occasions.  The prosecution invited the jury to accept as true the applicant’s admissions in those interviews that he had intended to attack Mr Chan.

THE DEFENCE CASE

Diminished responsibility

9. The jury was informed that on arraignment the applicant had tendered a plea of guilty to manslaughter on the basis of diminished responsibility, which had been rejected by the prosecution. The applicant did not give evidence.  However, evidence was adduced in support of the defence of diminished responsibility on his behalf by Dr Sylvia Chen.  It was her opinion that at the time of the killing of Mr Chan the applicant was suffering from an abnormality of mind arising from mental disorder that substantially impaired his mental responsibility for his acts that caused Mr Chan’s death.  She testified as to the history given to her by the applicant, in particular in respect of his feelings for his wife notwithstanding their divorce in 2006.  In her opinion, the applicant suffered from unresolved morbid grief over his divorce.  Having become aware of the relationship that Madam Tai enjoyed with Mr Chan, she said the applicant suffered from a delusional disorder, possibly delusions of morbid jealousy or more probably persecution.  Also, it was her opinion that the applicant suffered from an adjustment disorder with depressive features.

10. In rebuttal of Ms Sylvia Chen’s evidence the prosecution adduced evidence from Dr S H Lui and Dr Amy C Y Liu, both of whom were consultant psychiatrists and visiting psychiatrists at Siu Lam Psychiatric Centre.  It was the opinion of both doctors that the applicant was not suffering from the mental illnesses from which Dr Sylvia Chen said he suffered.  The applicant’s belief that Madam Tai was having an affair with Mr Chan was not delusional, whether or not it was correct, it was perfectly logical.

Provocation

11. However, both Dr Lui and Dr Liu said that the applicant was acting out of anger and may have been acting out of jealousy towards Mr Chan.  The judge directed the jury that their evidence and that of Dr Sylvia Chen, in that respect, together with their evidence that the applicant was self-centred, was relevant to their consideration of the issue of whether or not the applicant had lost his self-control.  Also, the jury was directed that relevant to that issue and whether any words or acts of Madam Tai may have amounted to provocation was the evidence of the historyof relations between the applicant and Madam Tai, in particular in respect of a background of tension, disputes and arguments.

GROUNDS OF APPEAL AGAINST CONVICTION

12. By Ground 1 of the grounds of appeal against conviction Mr Stirling submitted that the judge failed to direct the jury adequately in respect of the issue of provocation.  In particular, in his direction that the reaction to the provocative acts and words must be that of an ordinary reasonable person of the applicant’s age and sex he failed to direct the jury that they must have regard to the gravity of the provocation to the applicant and to do so having regard to all the evidence.  By Ground 2, it was contended that the judge erred in law by misdirecting the jury that the evidence of the experts as to his “medical condition” was relevant only to the issue of whether the applicant had lost his self-control not to the reasonableness of his reaction.

A CONSIDERATION OF THE SUBMISSIONS

13. In addition to his oral directions to the jury, the judge provided them with written directions, inter alia,in respect of the issue of provocation.  Clearly, the template for those directions was Specimen Direction 51 of the Judicial Studies Board’s ‘Specimen Directions’.  In the course of those directions, in the context of the facts of this case, the judge posed the two questions that arise from the application of section 4 of the Homicide Ordinance, Cap. 339, namely:

“ May the conduct of Madam Tai Fung Yi or Mr Chan Hon Kay on or before 24 February 2009, by things she did or things she said, or both of them, have caused the defendant suddenly and temporarily to lose his self-control?

  If you are sure that the answer to that question is no, then the prosecution will have disproved provocation.  If, however, your answer to that question is yes, you must go on to consider the second question, which is may that conduct of Madam Tai Fung Yi or Mr Chan Hon Kay have been such as to cause a reasonable person of the defendant’s age and sex to attack the victim?”

14. Of the attributes of a reasonable person, the judge directed the jury that he/she :

“ ... is simply a person who has that degree of self-control which is to be expected of the ordinary citizen who is of the defendant’s age and sex. When considering the question, you must take into account everything that was done and said according to the effect which in your opinion it would have on that ordinary person.”

15. In respect of the second question, the judge went on direct the jury:

“ If your answer is that what was done or said would or might have caused an ordinary person of the defendant’s age and sex to do as he did, then your verdict will be not guilty of murder but guilty of manslaughter by reason of provocation.”

16. Of the evidence relevant to a consideration of the first question, the judge directed the jury :

“ I have told you that in considering whether the defendant lost his self-control on 24 February 2009, you can take into account the prior history between him and his wife. That is because if you accept that there may have been a background of tension, disputes and arguments between them, you are entitled to consider whether any words or acts of Madam Tai Fung Yi may have amounted to provocation in the context of that background. You do not look at this matter in isolation.

In regard to the issue of any loss of self-control by the defendant you are entitled to take into account the evidence of the three psychiatrists. Their evidence may be relevant to the issue of whether the defendant in fact may have lost his self-control. That, members of the jury, is the only relevance of their evidence to the partial defence of provocation.

  You may take into account the fact that the defendant was, on the evidence they have given, an obsessively jealous person. You may take into account that he was self-centred or any of the other observations they made about his personality which you think in the circumstances might make it likely or more likely than not that he was provoked on this occasion.” 

17. Of the evidence relevant to the issue of whether or not the applicant had lost his self-control the judge reminded the jury that it had been the evidence of Mr Wong, who was walking together with the deceased and Madam Tai to the restaurant, and of the restaurant proprietor, Mr Tsang, both of whom witnessed the attack on the deceased that the applicant “appeared to be out of control” and that the attack was “frenzied”.

18. The judge went on to direct the jury specifically that the evidence of the three psychiatrists was not relevant to a consideration of the second question:

“ The evidence of the three psychiatrists is not relevant to the second question - that is, whether a reasonable person of the defendant’s age and sex might have done what the defendant did - because a reasonable person is one who has the degree of self-control to be expected of an ordinary citizen of the defendant’s age and sex and is not a person with any specific psychiatric disorders. [Italics added.]

  The law expects people to exercise control over their emotions.  If, for example, a person has an unusually volatile, excitable or violent nature he cannot rely on that as an excuse, so the ordinary person in the context is a person who is not exceptionally excitable or given to violence but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizen will exercise in society as it is today.  He may be a person who exhibits the emotions of anger or jealousy, he may be self-centred, but being unusually so is not a trait of the reasonable man.”

19. In his summary of the evidence of Madam Tai, the judge reminded the jury that her long marriage to the applicant had come to an end in 2006 at his insistence, “after he had formed a relationship with another woman”.  There was no dispute that the applicant had re-married, from which relationship a daughter was born.  In 2007, Madam Tai had begun working at BMW, where she had come to know the deceased with whom she enjoyed a “flourishing relationship”, but not one which was sexually intimate.  Nevertheless, she remained on reasonably good terms with the defendant.  However, on Christmas Day, 2008 the applicant had told her that the circumstances of his marriage were not good and that he wished to reconcile with her.  Of her response, the judge said:

“ She made it abundantly clear that she was not interested in this prospect.”

20. The judge reminded the jury of Madam Tai’s evidence that, after he had become aware of her relationship with the deceased, the applicant had displayed signs of obvious annoyance on having found the deceased present in Madam Tai’s on an occasion when the deceased had come to fix her computer.  On a subsequent occasion, around the Lunar New Year 2009, she had observed the applicant from her premises in the street looking towards those premises.  That had caused her to contact the applicant’s wife and she had informed her that he was troubling her.  At a family dinner at her premises around 22 February 2009, after she had rejected the applicant’s further request for a reconciliation and he had left in a tearful condition, she had gone down into the street to comfort him.

21. Of her evidence of having changed the locks to her own premises, the judge reminded the jury of her evidence for doing so, namely:

“ essentially because the defendant was pestering her for a reconciliation, something that she was not interested in.”

22. Towards the conclusion of his summing up, the judge reminded the jury that the defence case in respect of provocation was put on the basis that the applicant’s conduct on 24 February 2009 was triggered by the applicant seeing Madam Tai together with the deceased in the street walking towards the Tung Shing Restaurant, with the result that the applicant lost his self-control.  That apparently innocuous event was to be viewed in the context of their earlier accumulative provocative acts individually or collectively of Madam Tai and the deceased, namely:

“ (1) Madam Tai’s refusal to reconcile with him;

(2) Madam Tai’s refusal to take his phone calls or keep appointments with him;

(3) the presence of the victim in the former matrimonial flat;

(4) his belief that the relationship between Madam Tai and the victim was intimate;

(5) Madam Tai changing the locks on the former matrimonial home;

(6) Madam Tai placing the victim’s photograph by her bedside instead, where the photograph of the defendant used to remain; and

(7) Madam Tai and the victim smooching on the morning of 24 February.”

23. Then, the judge concluded his directions by repeating the questions that arose for the jury’s consideration in respect of provocation:

“ If you are not satisfied that those matters, accumulating over this period of time and finally triggered on the morning of the 24th, caused the defendant to lose his self-control and attack Mr Chan the victim, that is the end of the matter as far as provocation is concerned.  On the other hand, if the answer to that question is “yes” or if the answer is “it may have”, you would then have to go on to consider whether a reasonable man in the circumstances would have been provoked to act as the defendant did on that day.  If the answer to that, members of the jury, is “A reasonable man would have, or may have, responded in the way that the defendant did”, then you must acquit him of murder and convict him of manslaughter.”

24. In his judgment in the Court of Final Appeal in HKSAR v Ho Hoi Shing (2008) 11 HKCFAR 354 Chan PJ, with whom all the other judges agreed, addressed the issues that arise in the defence of provocation and the appropriate approach to be taken in addressing those issues (page 366-7, paragraphs 31-3) :

“ 31. It is well established that the defence of provocation involves the determination of two issues: was the accused provoked to lose his self-control, and was the provocation enough to make a reasonable man do as he did. The first is a subjective question involving a finding of fact upon the evidence before the court. The second is an objective question requiring the application of the standard of self-control of an ordinary person of the same age and sex as the accused. This is the effect of s. 4 of the Homicide Ordinance, Cap 339 (“the Ordinance”) as explained in the authorities. (See R v Camplin [1978] AC 705, Luc Thiet Thuan v R [1997] AC 131 and Attorney General for Jersey v Holley [2005] 2 AC 580.) Thus, if the jury are sure that the accused was not provoked to lose his self-control, that is the end of the defence. If however they accept that the accused was or might have been provoked, they then have to consider whether a person having the power of self-control to be expected of an ordinary person (of the same age and sex as the accused) would have lost his self-control and reacted in the way as the accused did. If they consider that such a person would or might have behaved as the accused, the defence of provocation is made out. If they are sure that such a person would not have reacted in a similar way, the defence fails.

32. Useful guidance as to the directions to be given to the jury in a case where provocation is raised was provided by Lord Diplock in Camplin, p. 718E:

“ In my opinion a proper direction to a jury on the question left to their exclusive determination by section 3 of the Act of 1957 would be on the following lines. The judge should state what the question is using the very terms of the section. He should then explain to them that the reasonable man referred to in the question is a person having the power of 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 like circumstances be provoked to lose his self-control but also whether he would react to the provocation as the accused did.”

33. The second aspect of this defence (that is, was the provocation enough to make a reasonable man do as he did) was further explained by Lord Nicholls of Birkenhead when delivering the majority judgment (majority of 6 to 3) in Attorney General for Jersey v Holley [2005] 2 AC 580.  In paragraph 6 of his judgment, Lord Nicholls, adopting the comments made by Lord Hobhouse of Woodborough in a dissenting judgment in R v Smith (Morgan) [2001] 1 AC 146 at p. 185F, said that there are two elements in this aspect: first, the assessment of the gravity of the provocation; and second, the assessment of how a person with ordinary power of self-control would react to provocation of that gravity.  The first element involves a consideration of everything both done and said as required by s. 4 of the Ordinance, and the second element involves a consideration of the accused’s conduct and whether a person with ordinary power of self-control would have reacted in a similar way.  The accused’s characteristics that a reasonable person, i.e. a person with ordinary self-control may be taken to share, are not such characteristics as are inconsistent with reasonableness.  The accused’s characteristics that the person with ordinary self-control may be taken to share are those which a reasonable person may have, e.g. having some physical impediment or deformity or something in one’s background that a person might be sensitive about, such as illegitimacy.  If the provocation was directed to that sort of thing, the reasonable person may be taken to have had such characteristics.”

25. As Chan PJ noted in his judgment, in Holley Lord Nicholls addressed the issues arising in respect of the second aspect of the defence of provocation.  In respect of the ambit of evidence relevant to a consideration of the first aspect, Lord Nicholls said (page 588 H - 589 A, paragraph 5) :

“ ... in deciding whether this ingredient exists in the particular case all evidence which is probative is admissible. This includes evidence of any mental or other abnormality making it more or less likely that the defendant lost his self-control.” [Italics added.]

26. Of the appropriate approach to the second aspect Lord Nicholls said (page 589 A - C, paragraph 6) :

“ the second ingredient, often called the objective or evaluative ingredient, raises, in the language of the statute, ‘the question whether the provocation was enough to make a reasonable man do as he did…[taking] into account everything both done and said according to the effect…it would have on a reasonable man’. Broken down, this objective ingredient has two elements. The first element calls for an assessment of the gravity of provocation. The second element calls for application of an external standard of self-control: ‘whether the provocation was enough to make a reasonable man do as he did.’ ”

27. Later, in approving of the view of the minority in Smith (Morgan), Lord Nicholls said (page 592 B - D, paragraph 18) :

“ The jury should assess the gravity of the provocation to the defendant. In that respect, as when considering the subjective ingredient of provocation (did the defendant lose his self-control?), the jury must take the defendant as they find him, ‘warts and all’, as Lord Millett observed. But having assessed the gravity of the provocation to the defendant, the standard of self-control by which his conduct is to be evaluated for the purpose of the defence of provocation is the external standard of a person having and exercising ordinary powers of self-control. That is the standard the jury should apply when considering whether or not the provocation should be regarded as sufficient to bring about the defendant’s response to it: see Lord Millett, at page 211.”

28. Of the overall approach to the issue of the defence of provocation, Lord Nicholls approved specifically (page 594G, paragraph 26) of the summary given by Lord Hobhouse of Woodhouse in R v Smith (Morgan) [2001] 1 AC 146 at 205 C - H.  There, Lord Hobhouse said that the constituents of provocation are:

“ (a) The defendant must have been provoked (whether by things done or by things said or by both together) to lose his self-control and kill or do whatever other act is alleged to render him guilty of murder. (b) This is a factual question upon which all relevant evidence is admissible including any evidence which tends to support the conclusion that the defendant either may have or did not lose his self-control. (c) If the jury conclude that the defendant may have been provoked to lose his self-control and do as he did, the jury should, as an exercise of judgment, but taking into account all the evidence, form a view as to the gravity of the provocation for the defendant in all the circumstances. (d) Finally, the jury should decide whether in their opinion, having regard to the actual provocation ((a) and (b) above) and their view as to its gravity (c above), a person having ordinary powers of self-control would have done what the defendant did.

If some elaboration of the word ‘ordinary’ is thought necessary, it should be along the lines advised by Lord Diplock and used by Judge Coombe in the present case.  The phrase ‘reasonable man’ although used in the section is better avoided as not assisting the understanding of the criterion ‘ordinary powers of self-control’.  The word ‘characteristics’ should be avoided altogether in relation to (d).  It is not used in the section.  It is alien to the objective standard of ordinariness and experience has shown that it is a persistent source of confusion.  Where relevant the age or gender of the defendant should be referred to since they are not factors which qualify the criterion of ordinariness.  But language which qualifies or contradicts such ordinariness must be avoided.  It is the standard of ordinary not an abnormal self-control that has to be used.  It is the standard which conforms to what everyone is entitled to expect of their fellow citizens in society as it is.”  [Italics added.]

29. It follows, in our judgment, that the judge was correct to direct the jury to ignore the evidence of the three psychiatrists when considering, “... whether a reasonable person of the defendant’s age and sex might have done what the defendant did” and in the reasons the he gave for giving that direction, namely “ ... because a reasonable person is one who has a degree of self-control to be expected of an ordinary citizen of the defendant’s age and sex and is not a person with any specific psychiatric disorders.”  That direction resonates with the observations of Lord Hobhouse cited earlier, namely that the appropriate standard is “of ordinary not abnormal self-control”.  The relevance of their evidence in respect of the issue of the defence of provocation was only as to the gravity of the provocation to the defendant and whether or not he had lost self-control.

30. As noted earlier, the judge addressed the jury at very considerable length in reminding them of the evidence of what Madam Tai and the deceased said and did that was relevant to the issue of the gravity of the provocation to the applicant.  In particular, the judge identified to the jury passages in the out-of-court records of interview of the applicant in which he described his anger at seeing the deceased together with Madam Tai on various occasions.  In those circumstances, it was not necessary for the judge to give the jury a further or separate direction in respect of the evidence relevant to the gravity of the provocation to the applicant when they considered that issue as an ingredient of the second limb of the partial defence of provocation.  Nothing said in the substantive judgment of this Court in HKSAR v Pak Mak Ming (CACC 164/2009; a reported 24 May 2010), of which I was the author, is authority for a general proposition to the contrary.

Conclusion

31. In the result, we are satisfied that there are no merits in the proposed grounds of appeal against conviction.  Accordingly, the application for leave to appeal against conviction is refused.