HKSAR v. NGAN LAK KWONG

FAMC No. 56 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 56 OF 2012 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACC NO. 14 OF 2010)

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DETERMINATION

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Mr Justice Ribeiro PJ:

1.  We dismissed this application for leave to appeal with reasons to be provided later.  These are our reasons.

2.  The applicant was convicted of murder before Saw J and a jury.  Provocation had been one his main defences. He complained on appeal that the judge had misdirected the jury on this defence. The Court of Appeal dismissed his appeal.[1]  He now sought leave to appeal on the substantial and grave injustice ground.

3.  In his oral summing-up (which ranged over three days), the Judge gave the jury extensive directions on provocation.[2] The material part for present purposes, as recorded in the transcript, ran as follows:

“How then do you determine whether [the applicant] was or may have been provoked to do as he did? There are two questions that you have to consider before you are entitled to conclude that [he] was or may have been provoked on this occasion. Firstly, was there conduct, behaviour, things said or done on 13 September which may have provoked, that is caused [him] to suddenly and temporarily lose his self-control? If you are sure that the answer to that question is, no, then the prosecution will have disproved provocation and providing the prosecution has made you sure of the ingredients of the offence of murder to which I have referred, your verdict would be guilty of murder.”

No complaint is made about the correctness of that passage in the summing up.

4.  However, to assist the jury in their deliberations, the Judge also provided them with written crib sheets intended to reflect his oral directions.  The leave application was centred on an error in the sheet containing the directions corresponding to the oral directions just referred to.  The erroneous part (preceded and followed by passages which were materially identical to the passages appearing in the transcript of the oral summing up) reads as follows:

"Firstly, was their conduct, behaviour, things are said or done on 13 September which may have provoked, that is, caused the defendant to suddenly and temporarily lose his self-control?" (Italics supplied)

5.  So in the written sheet, the word that should have been “there” appeared as “their”.  The entire submission of Mr Gerard McCoy SC was founded on this error.[3]

6.  The principal argument Counsel advanced was that this mistake constituted a fundamental misdirection because it amounted to instructing the jury that the defence of provocation is excluded unless the things said or done which are alleged to constitute provocation emanated from “a plurality” of sources, the word “their” signifying such “plurality”. 

7.  We do not consider that suggestion reasonably arguable.  The erroneous substitution of “their” for “there” in the crib sheet cannot possibly bear such an exclusionary meaning.  Anyone who reads English would take it to be plainly a typographical or clerical error since it deprives the sentence of grammatical sense.  No one would regard it as correctly setting out what the Judge intended to say.  Far less would anyone understand it to be a direction that the defence is shut out unless the alleged provocation came from more than one source.

8.  When that point was put to Mr McCoy, he advanced his alternative submission, namely, that if the error turned the sentence into “gibberish”, that in itself was a serious misdirection giving rise to a substantial and grave injustice.  One would of course accept that it would be a fatal error to send a jury to their deliberations with mere gibberish for guidance.  But that cannot sustainably be suggested to have occurred in the present case.  The Judge, as we have pointed out, directed the jury extensively on all aspects of the provocation defence. 

9.  Moreover, as the Court of Appeal pointed out, the Judge made it clear to the jury that once the issue of provocation was raised on evidence capable of supporting that issue, it was for the prosecution to prove that the defendant was not provoked, or if he was provoked, that he did not lose his self-control.  The jury’s focus was therefore directed to the evidence which the defence was relying on as constituting provocation and on what the prosecution had to say with a view to negating the defence.  There is no basis for suggesting that they would have approached the defence applying some specious exclusionary legal rule founded on a sentence rendered incoherent through a typographical error.

10.  The application is without substance and we accordingly refused leave to appeal.