HKSAR v. MA SIU CHIU

CACC605/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.605 OF 2002

(ON APPEAL FROM HCCC NO. 428 OF 2001)

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REASONS FOR JUDGMENT

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Hon Stock JA (giving the judgment of the Court):

Introduction

1. On 11 December 2003, we dismissed this application for leave to appeal against conviction, and said that we would deliver reasons later. This we now do.

2. The applicant was charged upon an indictment which contained two counts: the first alleging the murder of his father, the second of his mother. The offences took place on 7 July 2001 at the family home which was a flat in Clague Garden Estate, Tsuen Wan. On 27 November 2002, after a trial before Pang J and a jury, the applicant was, by a majority of 5-2, acquitted of the murder of his father but convicted of his manslaughter; and unanimously found guilty of the murder of Choi Lai Ying, his mother.

3. It was at all times conceded by the applicant that he had killed the two victims unlawfully; so no complaint was made about the manslaughter conviction on Count 1. This application for leave to appeal against conviction was restricted to the murder conviction on Count 2. His case was that he was guilty of manslaughter in both instances but not of murder. The contention on this appeal was that the murder conviction in relation to Count 2 should be substituted by a conviction for manslaughter.

4. The application was out of time, but we were satisfied by evidence placed before us that there was good reason for the failure to lodge the application in time, and we therefore granted the required extension, noting as well that Mr Zervos did not oppose the application for an extension.

5. There were two grounds of appeal, and in essence they were:

(1) that the judge erred in directing the jury that the issue of provocation did not arise in relation to the second count; and

(2) that the judge erred in delivering a direction as to lies; but that if he did not so err, the direction was inadequate.

The evidence

(1) The oral testimony

6. The applicant, who was aged 20 years at the time of the killings, lived with his parents and one of his sisters at Flat B on the fourth floor of Block C of the Clague Garden Estate. He had been raised in Guangdong after his parents came to Hong Kong with his other siblings; and he, the applicant, came to Hong Kong and joined them when he was aged 10 years. He left school at the age of 18, and then secured periodic employment. But a while before the events of 7 July he became unemployed again, although, according to his account, he kept that fact secret from his father.

7. There was, apart from the applicant and his parents, no-one who witnessed the events leading to the tragic deaths of the two victims, so the account of what transpired on the fateful day could come only from the applicant himself. That account came twice: once in the course of interviews after his arrest on 29 July 2001, and then in the course of his testimony at trial.

8. The essence of his evidence in court was that his father was very strict towards him, scolding him when he was at school for not being good enough, and urging him to find employment and to bring money home; that his father had a hot temper and used to drink and to gamble on horses, and was dissatisfied with the type of employment which the applicant would, from time to time, secure; that there was a time when he was sent back to the Mainland because he had taken his father's money; and that his father often struck him. The applicant returned from the Mainland in September 2000 and found a job at a restaurant but relinquished it, though he did not tell his father that he had done so, pretending instead to go out to work each day. When his father discovered that he had lost the job, he was very angry, told him not to return home and that he was not welcome there.

9. On the day of the killings, the applicant had been searching for employment and returned home in the evening between 6 and 7 pm, depressed, and did not greet his father. His father remonstrated with him, and told him to go to hell and to jump out the window. The applicant's mother intervened on the applicant's behalf telling the father not to scold and hit the applicant all the time, but the father retorted that it was because of her that they had a "bugger son" like the applicant. The meal was then served. The applicant sat quietly and sullenly but the father continued with his abuse.

10. Then the mother left the premises to go shopping. The father continued to scold the young man, saying that he was living off his, the father's, money and that if he did not go out to work he should go to hell and should either jump out of the window or into the sea, and that the father would treat the matter as if he had never had a son. In his evidence, the applicant said that he was by then very angry, and he went to the bathroom, but the abuse continued nonetheless; and when he, the applicant, emerged from the bathroom he passed his parents' bedroom where he saw and took a hammer which was there, and then approached his father:

"I didn't want to hear his voice so I swing the hammer" (Tr p 676).

11. Blood splashed down but he, the applicant, continued hitting even after his father fell to the ground. He did not however intend to kill him nor to do him any harm, he said, and did what he did because he was very annoyed and agitated. Later in examination in-chief, he was referred to a passage in his interview with the police to the effect that his father had hit him during the course of the tirade, and the applicant said, in evidence, that that indeed had occurred.

12. He moved his father to the parents' bedroom, he explained, and removed his father's clothes and put them in a plastic bag and then cleaned up the place, and was himself thinking of leaving the premises. Then he took a shower, during which time his mother arrived home from her shopping trip. He was very scared. He then described, in an obviously important passage, how he came to kill his mother:

"A. I didn't expect that she would be back at that moment. So I then went into the toilet, closed the door. My mother opened the door then my mother opened the door of the bedroom of my father. Then I heard her screaming, shouting for help and then she tried to rush out. So I opened the door, I told my mother not to shout. She asked me why did I do that. I said I didn't want to do that but it was because my father was beating me and scolding me so I did that. I told her not to go out to summon for help but she ignored me. She tried to go out. I don't know why I was still holding the hammer in my hand at that time and I just swung it again. My mother turned round. She sort of rush across towards me with her hand and that brushed my spectacles away down to the floor, then she fell to the ground, to the floor and then she was looking at me. That was scary. Well, it was very scary and so I was very scared and I just keep hitting until there was no response from her. I don't know how many strokes that I had made. I really don't know how many.

Q. Do you know why you hit your mother at all?

A. Don't know. She tried to go out and summon for help.

Q. Was that the reason you hit her?

A. I was scared." (Tr p 678A-J). (Emphasis added).

13. After some discussion between the court and counsel, examination in-chief continued and counsel for the applicant returned to the subject: Why had he hit his mother? He said that after he had struck her she fell and he saw her looking at him in a way which was scary. He did not intend to kill her nor to harm her in any way. That being so, counsel asked why did he harm her:

"Because I was scared at that time, she tried to go out to summon for help." (Tr p 680). (Emphasis added).

14. In the course of cross-examination, the subject of the cause of his conduct was re-visited. Given the first ground of appeal, it is worth recounting some of the questions and answers raised on that essential topic:

"Q. I think [your mother] asked you the question, why did you do it?

A. Yes.

Q. She did nothing to annoy you, right?

A. Right.

....

Q. She did not mean to offend you.

A. But I was so scared when she screamed." (Tr p 703).

He then said that he did not know why he had the hammer in his hand at the time, and that he used it because "she caused me panic or fear," and he agreed that at the time that he struck her she was going towards the main door and was attacked by him from behind.

15. Then he was taken to statements which he had made to the police in the course of his interviews, and there was the following exchange:

"Q. ... You told the police this. 'At that time I was very scared.' The officer said, 'Yes.' 'I had lost my reason at the time.' Officer said, 'Yes.' 'So I came out. I didn't want to let people know about it so I - I hit her on the head after being hit - hit for several times she lay down.'

A. Yes.

Q. That was an explanation for the subsequent blows, don't you agree?

A. I don't agree.

Q. Well, it says here 'yau hm shi bey yan chi,' I do not want other people to know.

A. I did not want my mother to go out to tell anyone.

....

Q. Apart from being scared, it's also true that you did not want other people to know.

A. I did not want my mother to go out and tell anyone and I couldn't control myself.

....

Q. She did not show any intention of telling others about the killing of your father, did she?

A. She tried to rush out.

Q. Yes, she was defenceless at the time, right?

A. Right.

Q. Now you were very concerned that other people may know about it.

A. Yes." (Tr pp 704-705). (Emphasis added).

16. After he had killed his mother, he moved her body to the bedroom and took off her clothes and then telephoned his sister to ascertain whether she was coming home that night. She said that she was not. He slept at home that night. He called no-one.

17. The next day, he telephoned two friends and went to the cinema with them. That evening he returned home and telephoned his sister again, and she said that she was coming home. He then collected as much money as he could find in the house and left. He was arrested about three weeks later.

18. The sister returned home and, of course, discovered the bodies and the police were called.

19. When the bodies of the two deceased were examined it was revealed that Mr Ma, the father, had received more than ten blows to the head, and that the skull, not surprisingly, was fractured; and the conclusion was that death was caused by repeated blows to the head. The mother had been the recipient of, as the judge put it, "upwards of thirty blows".

(2) The interview

20. In the course of an extensive interview which was conducted with the applicant after his arrest, he described the attack on his father and then said this as to the events upon his mother's return:

" Then, I closed the door and waited for my mum to come back and then - my mum entered and saw that. She was frightened to have seen that. 'Nasty boy, why did you do that? Then, she - she walked out. Then, I felt v-very afraid and thus dashed into the bathroom, fetched the hammer and struck - struck my mum on her head. Having been given ten-odd strokes, she also fainted." (Tr pp 381-382).

Then, later, in the interview:

"My mother went into the flat while I rushed - I rushed into - I went into the toilet, pretending to go - staying in the toilet for a long time. Then, she - she came up (and) Er - wanted to open the door. I - because my - my hammer had been put at the bathroom. She opened the door. As soon as the door was opened, she found that my father was lying there. She at once cried, 'Bad guy, why did you do it?' I said, 'I don't want to do so. It's he - it's he who first hit me, scolded at me.' Then, she wanted - to go out of the flat - to the front door, intending to shout for help. I - I was very scared at that moment, fearing that she would cry for help and I worried about what would happen to me? Then, I - also used - used the hammer to hit her on the head, hitting her at - at the sitting room - hitting her on the head." (Tr pp 417-418).

....

"A: Then, how you - you - when you came out at that time, did you hold in hand the head of the hammer [C: Yes.], the hammer?

C: Yes.

A: Why did you hold a hammer in hand?

C: Because she - she went out, shouting for help (and) I felt very scared.

A: How(?) Can you - you repeat once more?

C: Because when I went in, I had already - held - had picked up a hammer here, holding it in hand; I was very scared at that time - I feared she would shout for help; someone came to catch me - not sure." (Tr p 420). (Emphasis added).

He went on to describe what had next happened. He said that his mother had rushed towards the front door shouting for help and that he was very scared and that:

"I had lost my reason at that time, so I came out ... I didn't want to let people know about it, so I - I hit her on the head; after being hit - hit for several times, she lay down.

A: Er - you mean you're very scared ...

C: At the sitting-room.

A:

From the - very scared, so you held a hammer in hand in the toilet?

C: Yes.

A: In which hand did you hold (the hammer)?

C: This one.

A: The right hand, too?

C: Yes.

A: Chased after with a hammer held in hand?

C: Yes.

A: Chasing after your mother?

C: Yes.

A: Er - after you caught her, were you behind her or in front of her or directly - what did you do to her at that time?

C: I - chased after her (and) then hit her, hit her, hit her twice and she then said, 'Bad guy, why did you do so?' I said, '(I) didn't want to do so. It's he - it's he - it's he who first hit me, forced me and that's why I did so.' Then, I hit her for a few more times and she lay down." (Tr pp 422-424). (Emphasis added).

21. Then, much later, he was asked specifically about the reason why he hit her, to which his answer was:

"C: Upon being scared, afraid of being known. Afraid that she would tell that to others.

A: Yes. So came to hit her?

C: Yes." (Tr p 507). (Emphasis added).

Ground 1: Provocation

22. The first ground is the ground of appeal which addressed the issue of provocation. It was described by Mr Whitehouse, who appeared both here and below for the applicant, as his main ground; and he said that were this ground to fail, the second ground, even if meritorious, could not stand on its own.

23. The issue of provocation was left to the jury in respect of the first count, but not in respect of the second. In relation to the second count, however, the judge said that:

"The issue of provocation does not arise in the second count." (Tr p 14).

The issue on the second count, said the judge, was whether it was proved that the applicant had the intent to kill.

24. The argument before us was put this way, that there were two bases upon which the issue of provocation should have been left to the jury in relation to the second count: first, that there is authority to the effect that conduct capable of constituting such provocation as may reduce murder to manslaughter may emanate from someone other than the victim, and that the applicant in this case may have been acting under the effect of the provocative conduct of the father when the applicant attacked his mother; and, secondly, that in any event, the conduct of the mother after returning home was itself a source of provocation. That suggestion was put in this way in the written argument:

"There was no aggression from [the applicant's mother] towards the applicant. However the evidence from the applicant was that it was his mother's conduct which had caused him then to lose his self-control."

The evidence, it was said, was that her conduct caused the applicant to panic and that since conduct such as a baby's crying has been held to suffice as evidence of provocative behaviour which should be left to a jury, so too should provocation have been left to the jury in this case.

(1) Third party provocation

25. The authority upon which Mr Whitehouse relies for the first proposition is R v Davies (1974) 60 CR App Rep 253. It was there held, at p 258, that:

"... acts or words otherwise to be treated as provocative for present purposes are not excluded from such consideration merely because they emanate from someone other than the victim."

That case concerned the killing of a wife by her husband shortly after he had seen the wife coming down the steps of her place of work to greet her lover, and the lover approaching from the opposite side of the road to meet the wife. The judge directed the jury that provocation could run only if the provocative acts or words were those of the deceased before the shooting, thereby excluding provocative conduct at the time by the wife's paramour. The Court of Appeal pointed out that that was too narrow a direction since it ran contrary to the words of section 3 of the Homicide Act 1957 (which are mirrored by section 4 of the Homicide Ordinance, Cap. 339).

26. That case is not authority for the proposition that once a person has been provoked, he can then avail himself of the defence of provocation in relation to the killing of someone who, to the killer's knowledge, is in no way connected with the provocative words or conduct. In HKSAR v Manjit Singh [2001] 4 HKC 366, where we addressed the same point, we referred to a Canadian decision R v Manchuk [1937] 4 DLR 737, where, in reference to a statutory provision worded differently from our section 4, but the same in effect, Sir Lyman Duff CJC said at page 738:

"We do not think that the law, as embodied in s.261, contemplates the extension of [the defence of provocation] to a case in which provocation received from one person becomes the occasion of an act of homicide against another who, as the offender knows and fully realizes, was not in any way concerned in the provocation."

27. We respectfully agree, and a proper application of these combined principles to the testimony of the applicant in this case, even if wholly true, will show that the point taken has no validity in this case whatsoever. The mother was not in any way concerned with the provocation offered by the father. To the contrary, she sought to defuse the father's temper. Not only that, she left the premises and returned at least half an hour - and probably very much longer - after the applicant had killed the father. Mr Whitehouse conceded, as of course he was bound to do, that there was no evidence to suggest that the mother was involved in the provocation which had been offered by the father; so, having made that concession, he then shifted ground to suggest that perhaps the applicant had perceived that the mother had thus been involved. The difficulty with that contention, as with so many others advanced by Mr Whitehouse in this appeal, was that it was drawn from thin air, devoid of any evidential support. The applicant had asserted no such thing, and no such thing could conceivably be implied from his testimony. The applicant had even accepted, in terms, that his mother had not annoyed him.

(2) Provocation by the mother

28. This brings us to the second limb of the argument, that there was evidence of provocative conduct by the mother, such that the issue of provocation should have been left to the jury in relation to the second count.

29. We repeatedly encountered difficulty in drawing from Mr Whitehouse particulars of the words or conduct which it was said constituted the relevant provocative conduct on the mother's part. Eventually, those acts were specified to be two:

(1) the mother's scream, which said Mr Whitehouse, caused the applicant to lose his self-control; and

(2) evidence that the mother had glared at the applicant while he, the applicant, was beating her.

30. The type of testimony which gives rise to an obligation to leave the issue of provocation to a jury was addressed in R v Cambridge [1994] 1 WLR 971, 975:

" But what sort of evidence gives rise to the duty? Clearly, it is not for the judge to conjure up a speculative possibility of a defence which is not relied on and is unrealistic: see Fazal Mohammed v. The State [1990] 2 A.C .320,332. There must be some evidence, but of what strength? In Bullard v. The Queen [1957] A.C. 635, the phrase used was: 'any evidence ... fit to be left to a jury.' It is true that in Reg. v. Camplin [1978] A.C. 705, 716D, Lord Diplock used the phrase 'however slight', but he used it to describe the measure of the provocative acts or words, not the strength of the evidence that such acts or words in fact occurred and caused the defendant to lose his self-control. Likewise in Reg. v Rossiter (1992) 95 Cr App R 326, 332 when Russell LJ referred to 'material capable of amounting to provocation, however tenuous it may be,' the word 'tenuous' described the provocative acts and words not the evidence of their existence.

There are the two limbs of provocation: first, whether things said or done or both caused the defendant to lose his self-control; and secondly, whether those things might have caused a reasonable man to have reacted similarly. Section 3 of the Homicide Act 1957 provides:

'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; ...'

The starting point, therefore, is whether there is evidence on which the jury can find the defendant was in fact provoked to lose his self-control. That is a question for the judge. In our judgment, therefore, there must be evidence on the first limb from which a reasonable jury might properly conclude that the defendant was in fact provoked to lose his self-control or may have been so by some words or acts or both together. If the judge decides that there is not such evidence, he ought not to leave provocation to the jury. If, on the other hand, he concludes there is such evidence on the first limb of the two-stage test, the statute obliges him to leave provocation to the jury, even if he himself believes the circumstances to be such that no reasonable man would have reacted as the defendant did."

31. It is of no avail to assert provocation in some vacuum. There needs to be an evidential basis for it; evidence upon which a reasonable jury might properly conclude that the defendant was in fact provoked to lose his self-control. And it also follows that if there is to be suggested a loss of self-control which gives rise to the defence of provocation, there must be testimony upon which a reasonable jury could conclude that that loss of control was caused by provocation, and not by some other factor such as mere fear or panic: "a loss of self-control caused by fear, panic, sheer bad temper ... would not be enough": see Lord Steyn in R v Acott [1997] 2 Cr App R 94, 102.

32. One needs then to examine the evidence. It was for this reason that we have earlier set out at length the testimony relevant to the issue. The fact of the matter is that it was not the applicant's case that he beat his mother because such was her screaming that he lost his self-control. His testimony-in-chief was that when his mother opened the bedroom door, he heard her screaming and shouting for help; and she then tried to rush out. The screaming was not followed by a beating. Rather, the applicant asked his mother then not to shout. There is no suggestion that she disobeyed his request. On the contrary, she merely "asked why did I do that" and the applicant still did not beat her. He explained that he had done so because of his father's conduct. It was then that she went to leave the premises. He was asked, as specifically as one could be asked, by his own counsel, why he hit his mother and the answer was: "Don't know. She tried to go out for help." Then he was asked again by his counsel why in fact he harmed his mother. His answer was not that she was screaming or that he could not bear her shouts, but rather:

"Because I was scared at the time, she tried to go out to summon for help." (Tr p 680).

33. We have seen from the cross-examination that he accepted that she had done nothing to annoy him (page 703) and although he did say (page 703) that he was scared when she screamed, he accepted that he hit her only when she moved to the door and that he had attacked her from behind. "She caused me panic and fear" he said, and when asked:

"Are you saying that that that's a good reason for killing her?" he answered:

"She was looking at me and it was miserable." (Tr p 703)

He made it clear (page 704) that the reason that he hit her was that:

"I didn't want to let people know about it so I hit her on the head."

That, too, was precisely the theme of his explanation to the police in the course of his interview.

34. In summary, therefore, the evidence of the applicant was not that he was provoked by words or deeds of his mother to lose self-control. His testimony, and the comments he made to the interrogating officers, was that he was in fear that his mother would report what had happened. She was leaving the premises. She had done nothing to annoy him; he did not know why he had a hammer in his hand at the time of his attack upon her; but by going to the door, she caused him to panic or to fear. He attacked his mother from behind half an hour or more after he had killed his father and he did so, according to his own evidence, because he did not want her to go out and notify anyone; because he was scared. This does not, in our judgment, amount to evidence upon which a reasonable jury might properly conclude that the applicant was or may have been provoked by his mother to lose his self-control.

35. We wish next to say a few words about the contention that the mother's stare after she was hit on the head with a hammer was itself a provoking act. The evidence upon which Mr Whitehouse relied was a passage in the interview with the police in which the applicant had said that he had continued to hit his mother whilst she was on the floor and that he did so: "Because at the time she - her eyes still - she's looking at me, looking with her eyes; I was scared." (page 428). Shortly before this comment, the applicant had described how he had hit his mother with a hammer several times before she had fallen to the floor, and that she fell to the floor unconscious. He, the applicant, went on with the assaults nonetheless and he did so because, having felled her in this way, "she's looking at me with her eyes". This is said to have been provocative conduct by the mother.

36. It was, as we heard this argument put, let alone developed, scarcely believable that any member of the Bar would advance it. Had the subject matter not been so tragic, one might have wondered whether it was advanced as a serious proposition. Rather than let it go, however, counsel assured us that he was indeed being serious, and he added insult to injury by arguing that the mother's stare was delivered but after the first blow or blows with the hammer, which might not have been the blow or blows which caused death; so that the subsequent blows which did cause death followed the provocative stare. Therefore, he argued, the defence of provocation ran, and the judge should have left it to the jury.

37. To offer a submission of this calibre is to treat a court with blunt discourtesy. To assume that this type of argument is acceptable fare is to demean the profession, and is profoundly to misapprehend the function of this Court. Whilst this example is a particularly bad one of its kind, it is worth saying, lest it be thought otherwise by a few, that it is not this Court's function to absorb and suffer in silence the articulation by counsel of whatever notion, regardless of merit, comes to counsel's mind. It is of course counsel's duty fearlessly to represent his client, but that duty is one that is exercised professionally. Counsel has a responsibility to the court as well as to the client, and it is emphatically a breach of that responsibility, as well as a waste of public funds, to advance an argument which counsel must - and certainly should - know is patently unarguable.

38. The judge was correct not to leave the defence of provocation to the jury in relation to the second count, and this ground fails.

Lies

39. There was a lengthy discussion between the judge and counsel as to whether a lies direction should be given. Both counsel had suggested that there was no need in the case for such a direction. Mr Whitehouse submitted that a Lucas direction was not warranted, so the judge intimated that a general direction might instead be appropriate rather than one which suggested that lies might go to support the prosecution case. As we read the response of Mr Whitehouse he did not seem to demur from that, but his answer may be read in more ways than one and he told us, and we accept, that that was not his intention.

40. What the judge said to the jury in the event was this:

"After going through his evidence you may come to the conclusion that he was telling you the truth or that he may be telling you the truth. If that is the case, then he did not have the requisite intent, either to kill or to cause grievous bodily harm and he must be acquitted of both counts of murder.

However, if you find that he had lied in parts of his evidence, or even in all of his evidence then you must bear this in mind. The mere fact that the defendant tells a lie is not in itself evidence of guilt. A defendant may lie for many reasons, for example: to bolster a true defence; to conceal disgraceful conduct of his short of the commission of the offence; or out of panic or confusion. If you think that there is or may be some innocent explanation for his lies then you should take no notice of them.

When you consider the evidence for and against the defendant let me emphasise to you once more even if you do not accept the evidence of the defendant you will still have to be satisfied beyond a reasonable doubt, that is you feel sure that the defendant, on the prosecution's evidence he had committed the offences as charged.

If you find that there is some element of truth in his evidence or if there is some doubt, you give the benefit of the doubt to the defendant. Even if you reject his evidence completely you will still have to go through the prosecution's evidence and satisfy yourself beyond a reasonable doubt. You will remember that the defendant has a clear record which means he has not committed any criminal offence before." (Tr p 34A-Q). (Emphasis added).

41. The suggested problem with that part of the direction which we have emphasized is that it may have led the jury to believe that the judge had concluded that the applicant had indeed lied. This, with respect, is to ignore what the judge said, and the sense of what he said.

42. Then it was argued that there were no lies established which could underpin the need for such a direction. That is a simplistic view of the case and of the testimony led. As Mr Zervos, for the respondent, correctly demonstrated, there were several points upon which the applicant's evidence departed from that given by others. They included the fact that the applicant asserted that his father was a heavy drinker, which contradicted the testimony of the applicant's siblings. In his interview with the police, the applicant had said at one stage that after his mother had left the premises to go shopping, his father no longer scolded him. This conflicted with other parts of the interview, and with his oral testimony. These were not peripheral matters, and had the direction about lies not been given, we rather think that that would have formed a ground of appeal.

43. Finally, it was contended that the form of the lies direction was a misdirection in the sense that it did not tell the jury how to treat lies if they thought that there was not an innocent explanation for such lies. We agree that if a judge tells a jury that lies should be ignored where they conclude that there is an innocent explanation for them, there is a danger of misuse if the judge does not say what use may be made of lies in the event that there is no innocent explanation. It would have been better had the judge omitted that particular sentence which alluded to innocent explanation, and simply told the jury that they were to ignore evidence which they considered untruthful. We are however satisfied that, given the place, tenor, and context of the direction, no harm was done, especially since the judge made clear that a lie could never of itself be evidence of guilt.

Conclusion

44. For the reasons we have provided, we concluded that there was no merit in the application for leave to appeal against conviction, and accordingly it was dismissed.

Ma CJHC:

45. Mr Justice Stock JA has just given the Reasons for our decision made on 11 December 2003 and this represents the judgment of this Court. I wish, however, to allude to that part of defence counsel's submissions in relation to the provocation issue. It is no part of counsel's duty to his client to make submissions which have no validity whatsoever and which are "drawn from thin air, devoid of any evidential support": see paragraph 27 above. The criticisms made by Mr Justice Stock in paragraphs 36 and 37 are severe but are fully justified in the present instance.

46. In Rondel v Worsley [1969] 1 AC 191, at 227, Lord Reid said this, "Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public which may or often does lead to a conflict with his client's wishes or with what the client thinks are his personal interests. Counsel must not mislead the court ..." [emphasis added]. Those words apply nowadays as they always have and will to barristers and other advocates. The duty to represent a client does not carry with it any duty or licence to run arguments which are hopeless or worse, misleading. The duty of defence counsel in an appeal is not to settle or run grounds of appeal unless they are properly arguable meaning they have some real chance of success: see paragraph 5(a) of Practice Direction 4.2; Halsbury's Laws of England (4th edition Reissue) Vol. 3(1) at paragraph 475.

47. In Yau Chin Wah v Gold Chief Investment Ltd. and Another [2003] 3 HKLRD 553, at 564 (in paragraph 32), I referred to the crucial role of solicitors and barristers in promoting the administration of justice. This is a paramount duty. I do not repeat that part of the judgment here but it is as applicable to criminal cases as it is to civil cases, as applicable to barristers as it is to solicitors. The courts will not be prepared to countenance any dilution of this paramount duty.