THE QUEEN v. IP SIU MAN

Headnote

                Murder - provocation - Judge's right to decide whether the evidence shows an actual loss of self-control sufficient to go to the jury not affected by S.4 of the Homicide Ordinance Cap. 339 - importance of immediacy of response to the alleged provocation.

_______________

JUDGMENT

_______________

McMullin, V.-P. :

1. On the 8th May, 1984 the applicant IP Siu-man, shortly before 8:30 in the evening of that day, entered apartment No. 16 on the lower third floor of Lai King House in the Lai King Estate and attacked two young women, LEUNG Shuet-sze and LEUNG Shuet-ann, with a knife inflicting upon them a number of serious injuries from which they died very shortly afterwards. The major injury in the case of each victim was the cutting of the great blood vessels in the neck.

2. Immediately prior to this he had also attacked the mother of these young women, Madam YEUNG Wai-kwan. Her injuries, which included a wound in the neck, were fortunately not fatal although they required immediate surgical treatment and she was subsequently detained in hospital for about one month.

3. The applicant was arrested at his own home in Shatin in the early hours of the following morning. He was charged with these offences and on the 20th October, 1984 he was convicted in the High Court of the murder of LEUNG Shuet-sze and LEUNG Shuet-ann and of wounding their mother with intent to cause grievous bodily harm. The facts thus briefly recited were never in dispute.

4. The applicant did not give evidence at the trial but two of his sisters were called for the defence. The case for the Crown rested principally upon the evidence of the mother of the two victims, the father of the applicant, and two police constables.

5. There was a large measure of agreement as to the circumstances leading up to this bizarre and terrible outburst of violence. The applicant had been a school-mare of Shuet-sze, the elder sister, and after they left school he entered the Royal Hong Kong Police Force. Shuet-sze found employment but continued to reside with her mother at apartment No. 16 as did the younger sister who was still engaged in school studies.

6. Some time thereafter the applicant and Shuet-sze came into contact with each other once again and, despite understandable reluctance on the part of the mother when giving evidence to admit to anything of the kind, it seems clear that a strong attachment developed between them.

7. During 1982 and 1983 they went out together and there were frequent phone conversations. Shuet-sze seems to have exerted a very strong influence over this young man. There was evidence that she had persuaded him to give up his job in the police force and that he had either abandoned or else modified his drinking, smoking and gambling habits at her insistence.

8. In October 1983 the father of Shuet-sze and Shuet-ann was taken suddenly ill and was admitted to hospital where he died five days later. The applicant rallied some of his friends to assist the family in their bereavement and the applicant himself actually moved into Madam Yeung's apartment over the period of traditional mourning for the father staying on for some time thereafter.

9. This phase ended in December 1983 with an altercation between him and the younger sister Shuet-ann who, being engaged in her studies, complained of his being noisy. He was angered by the way she spoke to him and he knocked her down causing damage to her mouth and teeth which required surgical treatment. This resulted in a complaint to the police and in subsequent proceedings the applicant was bound over.

10. There was subsequently something in' the nature of a rapprochement between the two families initiated by the parents of the applicant who seem to have favoured the relationship between their son and Shuet-sze. Despite what had happened that relationship does not appear-to have been seriously impaired and the two young people continued to see each other. Around Christmas 1983 Madam Yeung and both daughters attended the wedding of one of the applicant's sisters, Shuet-sze herself being specially included in some of the wedding photographs.

11. In the first week of May 1984 however, two incidents occurred which may well be regarded as an ominous prelude to the events of the 8th.

12. About 4 days prior to that date the mother and the younger sister were obliged to make a sudden visit to Queen Elizabeth Hospital in Kowloon on receiving a phone call from the applicant informing Madam Yeung that Shuet-sze was unwell and that he was taking her there for treatment. It transpired that this was a hoax, the purpose of which was to enable the applicant to have some time alone together with Shuet-sze in the apartment at No. 16. Madam Yeung however returned with unexpected speed and surprised them in what seems to have been a distinctly a compromising situation. The tenor of her evidence at this point was so biased and confused that what precisely was going on upon her entry never became clear. Shuet-sze would appear to have been at least partly unclad since her bra was found lying upon the sofa, but all that the mother could say of the applicant was that she found him sitting on the floor, presumably not unclad since she makes no reference to that.

13. She did indeed testify that she had discovered him in the act of raping her daughter and that the latter was bound and gagged. In cross-examination she admitted that she had seen no such thing and it seems likely that this accusation derived mainly from her own suspicions, and possibly in some measure from what Shuet-sze told her subsequently in an effort to extenuate her own part in the affair. There is, on the evidence, no reason to believe that the occasion was other than the result of a mutually agreed stratagem.

14. No doubt to have been discovered in such circumstances must have been very painful to the girl. It may be, although it must be said that the evidence does not clearly disclose it, that it was as a result of this incident that Shuet-sze's attitude towards the applicant was sharply altered. At all events it is clear that thereafter the applicant was persona non grata at No. 16 and it was in that state of affairs that, a couple of days later, he turned up at the apartment and demanded to be admitted and when refused, kicked the door and damaged the lock. When he went away a report was made to the police.

15. On the 8th May the mother and the younger sister were at home. The evening was warm and the front door of the apartment had been left open but the metal grille outside that door was padlocked. At around 5:30 the applicant suddenly appeared and asked to be admitted. This was refused and he thereupon knelt on the floor outside the grille holding the bars with his hands. At about that time Madam Yeung saw Shuet-sze in the street below approaching the entrance to the building. She gestured in a manner which conveyed the situation to the girl who thereupon turned back and went to seek police help.

16. Madam Yeung and the younger girl then left the premises, padlocked the iron grille and went past the applicant who continued to kneel in the same position and went downstairs where they met Shuet-sze returning in the company of two police constables. The five of them returned to No. 16 to find the applicant still there. The police officers questioned him and the mother and her daughters went inside the premises. According to the officers the applicant was distraught and weeping and pleading with the girl to forgive him. To this she replied that she would not forgive him and told him to go away or else she would expose his "dirty tricks".

17. Eventually the officers persuaded him to leave and he did so reluctantly, begging to be allowed to stay and protesting his love for the girl. All this had taken about 15 or 20 minutes and the officers were evidently satisfied that they had persuaded him to leave for they parted from the defendant, though whether within or without the building is not clear, and returned to their other duties.

18. About half an hour after the applicant had gone off with the police officers Madam Yeung saw him once more outside the grille kneeling in the same position as before. She then phoned his parents at Shatin and asked the applicant's mother to come and take her son away. Both of the applicant's parents came in answer to this plea. According to Madam Yeung they arrived slightly after 7 o'clock, the applicant's father put the time at about 7:40. Madam Yeung and her daugthers were still within the apartment behind the locked grille and the applicant was still kneeling outside it.

19. The central and indeed the sole point in this appeal derives from the evidence given by the father of the applicant as to what happened very shortly after the arrival of himself and his wife in answer to Madam Yeung's phone call. This witness, Mr. YIP Chan-on, described how, having found their son kneeling in this extraordinary way outside the metal grille of NO. 16, his wife said: "My dear son, just leave the place. If you don't want to keen your pride, I want to keep mine." There was no immediate response to this and Mr. Yip repeated something to the same effect and added: "Go home and let us talk about it after we have returned home. It is something very trivial; it is something in connection with girls which is something very trivial in fact." The vital part of his evidence, from the defence point of view, comes immediately after this:

"I just advised him to go home, but he just did not respond to my advice. But eventually he did make a remark. He said, 'I don't mind going home, but once I go home, I will commit suicide.' And hearing that his mother cried even more bitterly and at that stage, there was a girl amongst the group of us, but that girl was standing somewhere inside the premises, I heard her say this: 'Even if you die, I would not shed one drop of tear.' So we remained standing there for quite a lengthy period of time whereas the defendant was also there kneeling dote but eventually he said he was in urgency to urinate. But then at the place there was nowhere that he could do that, namely to urinate, so he indicated that he would have to do that somewhere away from the place to obey that call of nature. So eventually he just went down to the 2nd floor and urinated near the corner of the staircase on the 2nd floor."

Mr. Yip went on to describe how after that he accompanied his son back up to No. 16 where his son resumed his vigil outside the iron grille where he remained for a while kneeling and sobbing. After that the applicant stood up and went downstairs by the middle staircase followed by Mr. Yip and his wife. When they got to the ground floor the applicant somehow managed to double past them and returned to No. 16. Mr. Yip and his wife returned to find him kneeling in the same way.

20. At this point, according to Mr. Yip, Madam Yeung had emerged from her premises. The applicant said he wanted to talk to Shuet-sze and at his instance Mr. Yip, his wife and Shuet-sze's mother drew slightly away to a wider part of the corridor nearer a staircase where Madam Yeung suggested to him that the applicant was mad and needed the attentions of a doctor. The evidence does not indicate that this was said within the hearing of the applicant himself.

21. Madam Yeung also describes the urination episode but she does not mention the departure of the applicant with his parents from the third floor and his subsequent return thereafter. Her story was that she had emerged from the premises shortly after the arrival of the parents and had remained outside having locked the grille once more. She said that in all about an hour elapsed after her leaving the premises up to the point at which the violent episode began. She agreed however that she had drawn aside somewhat with the applicant's parents shortly before that happened.

22. What happened immediately after that was somewhat variously described. According to Mr. Yip the applicant having knelt for a little time further then approached where Mr. Yip and the others were standing near the middle staircase and complained of feeling dizzy and said that he would like to stay there for a while before walking down. The applicant was standing a little way off from them at this point and according to Mr. Yip he stood there for about 10 minutes.

23. A neighbour, Mr. CHIU Wah-shing, who lived at No. 13, a little way along the same corridor, had observed some of the comings and goings during that evening and he said that he saw Mr. and Mrs. Yip and Madam Yeung walking together in the direction of the middle staircase and that he then saw the applicant-described as "the fattish man" - go in the same direction. He said that these four persons spent about one minute in conversation before there was any trouble.

24. Madam Yeung does not describe any conversation with the applicant at this point. She said that when he got up and approached them he went past them and was looking at her. All three witnesses however agreed that what happened next was that the applicant suddenly sprang at Madam Yeung and dragged her along the corridor to No. 16 and it is common ground that in the course of doing that he suddenly produced a knife with which he stabbed her in the neck. When he got to the doorway of No. 16 he shouted to the girls that he would kill their mother if they did not let him in.  Madam Yeung, wounded though she was, told them not to open the grille but seeing their mother's plight the grille was opened by one of them and thereupon the applicant released the mother and rushed into the apartment and at once attacked Shuet-sze with his knife. The younger sister, coming to her assistance, was set upon in turn and both girls received the injuries already described from which very shortly afterwards, they died. The neighbour, Mr. Chiu, having seen part of this action dialled 999 and shortly afterwards the police arrived:

25. The parents of the applicant, perhaps overcome by the appalling nature of the scene, had by then disappeared and returned home where they were joined later on by the applicant himself. He remained with them until his subsequent arrest in the early hours of the following morning.

26. At the conclusion of the evidence counsel for the Crown, in the absence of the jury, sought from the judge an indication as to whether he proposed to leave the question of provocation to the jury. Submissions were made by counsel upon both sides and in a short ruling the judge indicated that he did not propose to do so.

27. Upon the hearing of the appeal, Mr. Sedgwick for the applicant, makes no complaint of the summing-up in any respect other than to maintain that the judge was wrong not to leave the issue of provocation to the jury.

                what counsel says is that the words spoken by one of the girls, and most probably by Shuet-sze, in answer to the applicant's professed intention to end his own life not only explain his ultimate reaction but were sufficiently proximate thereto to oblige the judge to leave it to the jury to decide whether in so behaving he was no longer the master of his own mind but had been provoked into a temporary loss of self-control by what she said.

28. Counsel acknowledges that even if this point succeeded it would not touch the validity of the conviction on the third count nor would it entitle him to ask the court for any order more favourable to his client than an order for a retrial.

29. It might very well be that, in view of the circumstances which have been described, the average laymen's reaction to such a contention would be that such words could not amount to provocation in any sense at all. At the time when Holmes v. D.P.P.⁽¹⁾ was decided, it was undoubtedly open to a judge to take that view and to withdraw the issue from the jury upon that basis.

30. Since the enactment of Section 3 of the Homicide Act of 1957 however (corresponding precisely with the terms of Section 4 of the Homicide Ordinance which came into force in 1963) the preponderant weight of judicial opinion at the highest level in England has been that the effect of these provisions was to take from the judge the right to decide, as a preliminary matter, whether the provocative incident relied upon was in itself sufficiently grave to make the plea available to the defendant. This view is clearly expressed by the Privy Council in Phillips⁽²⁾ , in which the Board were considering Jamaican provisions equivalent to Section 3 of the Homicide Act. At page 134 Lord Diplock says:

"The test of provocation in the law of homicide is twofold. The first, which has always been a question of fact for the jury, assuming that there is any evidence upon which tey can so find, is: 'Was the defendant provoked into losing his self-control?' The second, which is not of fact but of opinion:

 

In Holmes v. Director of Public Prosecutions (1946) A.C.588 .............. the case which finally decided that even a sudden confession of adultery could not amount to provocation at Common Law, it was laid down that although the second question was also one for the jury, it was nevertheless the function of the judge to make a preliminary ruling as to whether or not the provocation was such as could provoke a reasonable man to react in the way which the defendant did. It was this decision not that in Mancini v. Director of Public Prosecutions (supra), which was reversed by the English legislation of 1957 and the Jamican legislation of 1958."

Ten years later in D.P.P. v. Camplin⁽³⁾ the House of Lord was, considering a somewhat different facet of the law provocation. Although primarily deciding that the Court of Appeal had correctly held that the trial judge had been in error to direct the jury to pay no account to the young age of the respondent when considering the question of provocation, the topic of provocation is nevertheless dealt with at large in the several speeches of their Lordships, all of whom refer both to the Act of 1957 and the decision in Holmes. At page 23 Lord Morris of Borth-Gest says:

"It will first be for the court to decide whether, on a charge of murder, there is evidence on which a jury can find that the person charged was provoked to lose his self-control; thereafter, as it seems to me, all questions are for the jury."

31. At page 19 Lord Diplock dealing with the changes made by the Act, says:

"Secondly it makes it clear that if` there was any evidence that the accused himself at the time of the act which caused the death in fact lost his self-control in consequence of some provocation however slight it might appear to the judge, he was bound to leave to the jury the question, which is one of opinion not of law: whether a reasonable reacted man might have reacted to that provocation as the accused did."

Later on (page 21), he adds that Holmes v. D.P.P.⁽¹⁾ ought no longer to be treated as an authority on the law of provocation.

32. These decisions notwithstanding, Mr. Duckett for the Crown asks us to say that nevertheless, there must be, even since the introduction of the Homicide Ordinance, a threshold of gravity which the alleged provocative act must reach before the judge is obliged to leave the matter to the jury. In this regard he relies upon the decision LEE Chun-chuen v. R.⁽⁴⁾ in which Lord Devlin delivering the opinion of the Board said:

"The point that their Lordships wish to emphasize is that provocation in law means something more than a provocative incident. That is only one of the constituent elements. The appellant's submission that if there is evidence of an act of provocation that of itself raises a jury question, is not correct."

In R. v. FONG Ma-sum⁽⁵⁾, a Full Court decision, I had occasion to point out that this view of Lord Devlin was expressly founded by him upon the opinion of Lord Simon in Holmes - a decision given before the passing of the Homicide Act in which the latter had clearly said that, taking the view of the evidence most favourable to the defendant, the judge must decide whether the matter available in support of the plea of provocation would be sufficient to provoke a reasonable person to do the act complained of.

33. What troubled the Full Court at that time was that the decision in LEE Chun-chuen appears, in this respect, to be in collision with the later case of Phillips⁽²⁾ , (in which LEE Chun-chuen was not cited or discussed). In Phillips⁽²⁾ the Board had expressly stated that it was the decision in Holmes, and not that in Mancini v. D.P.P., which was reversed by the Act of 1957 (Diplock, L.J. at p. 135).

34. What Lord Devlin had said in LEE Chun-chuen was that before the judge was entitled to leave provocation to the jury, he must decide whether the evidence had disclosed "a credible narrative of events" sufficient to suggest the presence of three distinct elements: (a) an act of provocation, (b) an actual loss of self-control and (c) a retaliation proportionate to the provocation. What this analysis suggests is that even if the judge is satisfied that there was evidence of a provocative incident followed by an apparent loss of self-control, it is yet open to him to withdraw provocation from the jury if in his opinion the nature of the retaliation was wholly unreasonable. But this was the very question which Section.3 of the Homicide Ordinance had placed in the care of the jury.

35. In FONG Ma-sum⁽⁵⁾ I ventured to suggest that any apparent collision between these cases might be avoided by interpreting Lord Devlin's analysis in the sense that it would be open to a trial judge, confronted with some evidence of a provocative act, and some evidence of loss of self-control in relation thereto, to decide whether the narrative of provocation was sufficiently credible to be left to the jury by having regard to the question whether the retaliation appeared to him to be reasonably proportionate to the alleged provocation.

36. Whatever be the value of that suggestion there is no doubt that all authorities judicial and academic now converge upon the view that it is the province of the judge to decide whether the evidence is sufficient to disclose an actual loss of self-control. Mr. Sedgwick, as I understand him, does not dissent from that view.

37. In his analysis of the notion of provocation in LEE Chun-chuen⁽⁴⁾ Lord Devlin was at pains to emphasize that the three elements which he described were not detached from each other. He said, "Their relationship to each other - particularly in point of time, whether there was time for passion to cool-is of the first importance." This, as it seems to us, touches upon the point of central importance in the present case and it brings us moreover back to Lord Devlin's own definition of provocation in Duffy⁽⁶⁾ which has occasioned no subsequent dissent and continues to be received as the classic definition of provocation. The part of that definition which is of especial importance here is where it provides that the effect of the provocation must be "a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him for the moment not the master of his mind."

38. In deciding whether there has been in truth a loss of self-control - the preliminary question which is without doubt left within the province of the judge - he may legitimately have regard both to the nature of the reaction and the length of the interval separating it from its supposed cause. But of these two features it would seem that the paramount concern is the speed of reaction. Where the provocative incident is slight and the reaction thereto immediate, though extreme, clearly the matter should go to the jury to decide whether a reasonable man thus provoked would have reacted in that way. But every element in the evidence indicative of premeditation or delay or calculation must obviously tell against the idea of a sudden and temporary loss of self-control. The more prominent such elements are the more clearly is it left in the judge's province to decide the preliminary question which has been referred to variously as the "objective" or ”factual" question viz. is the evidence sufficient to show a loss of self-control?

39. In the present case Mr. Sedgwick took us carefully through the evidence as to the timing of the various events deposed to by the various witnesses. It is unnecessary to rehearse that evidence in any detail. Some of it, particularly that of the mother .of the dead girls and that of the father of the applicant suggests that about an hour elapsed from the time that parents arrived to the point at which the applicant attacked Madam Yeung. Some of the father's answers, taken together with the evidence of the neighbour CHIU Wah-shing (PW7), is capable of supporting a considerably shorter interval, perhaps between 20 and 30 minutes, Notwithstanding Mr. Duckett's suggestion that the overwhelming slant of the evidence favours the longer period we think, in agreement with the contention of Mr. Sedgwick, and following the observations of the Court of Appeal in Holmes^(l) , that the view of the evidence most favourable to the applicant ought to be taken.

40. In this regard the sequence of the applicant's acts, following upon the hearing of the words on which Mr. Sedgwick relies, is of greater significance than the actual period of time which they may have occupied.

41. What we have then is the picture of a young man clearly in disfavour with his beloved who approaches her aware already of some degree of rejection. After a long and abject period of pleading, which wholly fails to move her, he makes a desperate and somewhat theatrical declaration which is greeted by a cold rejoinder.  He is over-wrought and dejected. Nevertheless he does not leave but continues with his demonstration, no doubt in hope still to impress. He takes time out to urinate, returns to his vigil, leaves again with his parents, eludes them and returns once more and resumes his kneeling for a short while. He then gets up and moves towards his parents and the mother of his lover. There is a pause, whether for one minute or more, after which he suddenly seizes this unfortunate woman and, producing a concealed knife, makes of her the desperate means of effecting an entry to the premises where at once he uses his weapon to despatch the two young women.

42. It would be difficult to imagine anything much further removed from the idea of a sudden and temporary loss of self-control. This was not a case in which the initial rebuff was followed from time to time throughout that 20 or 30 minutes by other acts or expressions emanating from anybody and capable of exacerbating or sustaining the initial insult.

43. In his Textbook of Criminal Law Professor Glanville-Williams recites Lord Devlin's classic definition and stresses the persistence in the present day of the principle of immediacy as n essential element in any successful plea of provocation. It is this element of immediacy which is wholly lacking here. This element of "suddenness" - the transport of passion involving sudden loss of self-control by reason of provocation has been emphasized in many cases (see, for example, Attorney General for Ceylon v. Perera⁽⁷⁾; The Queen v. R.⁽⁸⁾ and Reg. v. Croft⁽⁹⁾).

44. The two cases upon which Mr. Sedgwick has principally relied are of no assistance to him in this regard. Although in Whitfield⁽¹⁰⁾, the facts are in some respects strikingly similar to' the facts in the present case, the point at which the parallel breaks down is the very point which is crucial in the present case. In that case the rejected husband, seeking to re-establish himself in his wife's favour and clearly under great pressure of feeling, rejected with wounding words, declared that he would kill himself and produced a knife and made some dramatic exhibition, as though about to do so. When this was greeted with the retort: “See if I care, I don't care", he dragged his wife at once: into the next room where another girl was endeavouring to phone the police set upon them both with his knife and killed them. The trial judge did not leave provocation to the jury and on appeal it was said that he ought to have done so. It is clear that in that case there was simply no interval of time for cooling or calculation of any kind.

45. In R. v. Hall⁽¹¹⁾ the trial judge was said to have been wrong not to have left the issue of manslaughter upon the basis of provocation to the jury where a period of some 15 or 20 minutes had elapsed between an initial incident involving the defendant and another man upon a bridge - where either a fight or melee of some kind had taken place - and his stabbing and killing the brother of that man some distance away in a square not far from the defendant's own house. There was considerable conflict in the evidence between the defence and the prosecution. The prosecution case was that there had been a fair fight between the defendant and one man upon the bridge during which the defendant was knocked down and that he and his opponent and other people then withdrew to the nearby square after which the defendant went home. Shortly after that seeing his assailant go past his door with another man, the defendant pursued them but was unable to catch them. He then turned, upon brother of his assailant and stabbed him in the arm. Subsequently after a friend had taken the injured man away for medical treatment, another brother of the original assailant was attacked by the defendant and received a wound from which he died.

46. The defendant's story was that he had been the victim of an assault by a number of people. He had injuries to his face which were serious and which, according to a doctor, were unlikely to have been caused simply by a blow from a fist.

47. Giving the judgment of the Court Lord Hewart pointed out that the jury would have had to decide, upon this conflicting body of testimony, just what had occurred. He noted that if the story for the prosecution were accepted then the defence of provocation would have been very difficult indeed.

48. The whole point in that case, therefore, was that there was a body of evidence in considering which the jury might have been satisfiedthat the matter had not fallen out in the way described by the principal prosecution witnesses but that it was possible that the defendant had received his rather serious injuries in some other way and that there might therefore have been a sudden and grave provocation causing him to lose his self-control.

49. In ruling that he did not propose to leave provocation to the jury in the present case, Macdougall, J. based himself principally upon what he termed the lack of an evidentiary link between the alleged provocation and the ultimate retaliation. He wisely, and no doubt advisedly did not base his ruling on the idea that the alleged provocation was too slight. It was evidently his view that the applicant's ferocious outburst was not the result of anything said to him by the girl or her sister; that in other words there had not been a sudden and temporary loss of self-control. In this he was clearly right. Particular factors indicating calculation though not specifically mentioned by the judge, he the provision of the knife and the instrumental use of the mother to gain access to Shuet-sze.  It should be added that in such a case as this the absence of any testimony from the applicant himself inevitably made the plea of provocation even less realistic than it appears upon those unpromising facts.

50. For these reasons the application for leave to appeal against conviction must be refused.

(1)    (1946) A.C. 588

(2)    (1968) .53 Cr. App. Rep. 132.

(3)    (1978) Cr. App. Rep. 14

(4)    (1963) A.C. 220

(5)    (1973) H.K.L.R. 533

(6)    (1949) 1 All E.R. at page 932

(7)    (1953) A. C. 200 at page 206

(8)    (1981) 28 S.A.S.R. 321 at 338

(9)    (1981) 1 N.S.W.L.R. 126 at 140-141

(10)    (1976) 63 Cr. App. Rep. 39

(11)    21 Cr. App. Rep. 48