HKSAR v. LIANG YAOQIANG

CACC 393/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 393 OF 2010

(ON APPEAL FROM HCCC NO. 97 OF 2010)

________________________

________________________

________________________

J U D G M E N T

________________________

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

Introduction

1. The applicant was charged upon an indictment which alleged that on 12 September 2009 he murdered the lady with whom he was living, Yeung Sau-yu.

2. On 21 October 2010 he was convicted of that offence after trial by Beeson J and a jury.

3. He now seeks leave to appeal that conviction.

4. He admitted the killing.  He offered a plea of guilty to the offence of manslaughter, but that was a plea that was not accepted by the prosecution.

5. The sole issue in the case was the issue of provocation.

The evidence

6. Both the deceased and the applicant came to Hong Kong from the Mainland in April 2009, together with the applicant’s daughter, a teenager.  The deceased was at that stage married but separated from her husband, Mr Luk.  There is a daughter of that marriage who lives in Hong Kong with Mr Luk.

7. Upon their arrival in Hong Kong, the applicant and Ms Yeung set up home together in Castle Peak Road.  She and the applicant had formed an intimate relationship.  She obtained employment at a 7-Eleven store in Sham Shui Po.  He had difficulty in obtaining employment at first but was employed in the summer of 2009.

8. In August 2009 she obtained a decree nisi in respect of her marriage to Mr Luk.  She was then aged 35 years and the applicant aged 40 years.

9. In about June 2009, the applicant began to suspect that Ms Yeung was having an affair or several affairs.  In the interview which was conducted of him by the police after his arrest, the applicant spoke of his developing suspicions arising from apparently surreptitious telephone calls which he allegedly witnessed her making.  The person upon whom his suspicion alighted, incorrectly as it turned out, was the manager of the 7-Eleven store at which she worked.  The applicant thought that she was having an affair in order to further her prospects of promotion.

10. But the suspicion of an affair transpired to be correct.  Whilst she was serving as an employee in the 7-Eleven store, she met a customer called Chan.  The two started to have meals together and on 11 September 2009, he went to the Castle Peak Road apartment and had sexual intercourse with her.  They then went out for a meal and returned to the flat where once again sexual intercourse took place.  On each occasion, a condom was used and, on each occasion, a condom was disposed of in a rubbish bin between the second and third floors of the building in question.

11. On the afternoon of 11 September, the applicant telephoned Ms Yeung from his place of work and, he said in his interviews, he heard a man’s voice which Ms Yeung told him was coming from the television.  But he was suspicious and decided to leave work early to go check.  When he arrived at the building, he saw her leave and he went upstairs where he found the bed in a mess and some pubic hair.  He checked the rubbish bin between the second and third floor and found a used condom.  His suspicions were thus confirmed.  He telephoned Ms Yeung asking her to come back which she did only at about one o’clock in the morning.

12. Upon her return to the apartment there was, according to his account, a major row in the course of which she refused to reveal the identity of her lover, pushed a used condom towards his face, insulted him by alleging that he was a poor lover and by suggesting that he was not the father of his daughter.

13. The applicant’s case was that Ms Yeung’s conduct prior to 12 September was one of cumulative provocation constituted by her refusing to listen to his advice, and by behaving in a manner which fed his suspicions; but that the events of 11 September and the early hours of 12 September were in themselves highly provocative, whereupon he flew into a rage, took a knife and chopped her many times about the head.  At one stage, according to him, he offered to take her to the hospital but she said that she did not want to go and preferred to die, and then she offered him further provocation whereupon he chopped her further.

14. The former husband, Mr Luk, testified.  He had kept in touch with Ms Yeung and last saw her on 1 September 2009 when she told him that she had had an argument with the applicant and that she wanted to move to another place to live.  On the evening of 11 September at about 7 pm, the applicant telephoned him asking if the deceased was with him.  Then at about 5:40 am on 12 September, he received a telephone call from his ex-wife who said that she was very frightened because of an argument she had had with the applicant; that she had told him, the applicant, that she wished to live apart from him and that he had threatened to jump out of the building and had left the apartment.  She told Mr Luk that, later still, the applicant had called telling her that since he had no money, he wondered if she would allow him to stay one night more in the apartment.  The applicant had thereafter returned to the flat and had gone to sleep at shortly after one o’clock in the morning.  In this regard, it may be relevant to note that in his interview with the police, the applicant said that he and the deceased had not had sexual intercourse for two months prior to the killing whereas in his evidence, he conceded that he and she had sexual intercourse that night, a fact already established by the post-mortem detection of the applicant’s semen in the deceased’s vagina.

15. On the morning of 12 September, Mr Chan tried to contact Ms Yeung by telephoning her and also went to the apartment but to no effect; and then went to her place of work and told the manager that perhaps something had happened to her.  It seems that a report was then made to the police who entered the flat with the applicant’s daughter that evening and her body was discovered there.  She had died as a result of multiple wounds and there were also signs of asphyxiation.

16. In the meantime, the applicant had left the apartment and then spoken to his daughter, whom he told about the discovery of the used condom.

17. He then went to the Mainland and returned on 13 September, upon which return he was arrested and thereafter interviewed.

Previous hearings

18. The matter came before the Court, differently constituted in part, on two previous occasions but for reasons which are not now relevant had to be adjourned and the grounds of appeal have since been significantly re-cast.

19. We may first dispose of those grounds which fall within short compasses.

The meritless grounds

20. The first ground of appeal that there was a material misdirection in relation to the defence of provocation, not cured by subsequent appropriate directions.

21. In her opening remarks to the jury, that part of the summing-up in which she identified the issues between the prosecution and the defence, the judge said:

“If you are satisfied so that you are sure that the accused killed Madam Yeung in circumstances amounting to murder, you would have to go on and consider whether or not he was provoked at that time in such a manner that his culpability for murder was reduced to manslaughter.

If you were satisfied that the provocation had been established in that manner, you would have to enter a verdict of manslaughter on the basis of provocation.” (Emphasis added).

22. The complaint is that this erroneously reversed the burden of proof.  If matters had been left like that, there would have been merit in the complaint.  But matters were not left like that.  Far from it: time and again, most particularly in written directions provided to the jury and which they were specifically asked to take with them and study, the judge emphasised that the burden was on the prosecution to negate the defence of provocation.  Indeed, almost the last direction she gave was the direction to “bear in mind the accused has to prove nothing and bear in mind too that it is the prosecution has to disprove the provocation.  They have to make you satisfied that there was no provocation.”

23. The next ground of appeal which is convenient to address, is the third ground which complains of that passage in the summing-up which referred to the testimony of Mr Chan about his relationship with the deceased, including the acts of sexual intercourse, in the context of which précis, the judge said that his evidence gave “some support to the suspicions of the accused.” (Emphasis added).

24. The suggestion is that this understated the full impact of his testimony, so much so that it amounted to a material misdirection.

25. This ground is also bereft of merit.  It is abundantly clear from the summing-up that the judge was not for a moment casting any doubt upon the validity of the accused’s suspicion that the deceased had been unfaithful to him.  It was never an issue in the case.

The face-mask issue

26. For reasons which, on the material which we have, do not appear to us to be adequate, the witness Chan was permitted to testify wearing a mask.  We do not have a transcript of that part of the proceedings when he asked to be permitted to wear a mask but from what we do have, it appears that he said that he had developed a sore throat that morning and, for that reason, he wished to wear a mask.  It is evident from the judge’s summing-up that she viewed this explanation with some scepticism and was inclined to the view that he wished to hide his face because of the embarrassment which the proceedings occasioned him.

27. As a matter of principle, a witness should not be permitted to testify with part of his or her face covered.  Inherent in our process of justice is the ability of decision-makers to observe a witness testifying.  Where a witness is a vulnerable witness – which this witness was not – that vulnerability is protected by video link evidence, not by masking the face.

28. That said, we are not persuaded that any injustice was or may have been occasioned by what happened.  In this conclusion we are influenced by the fact that no objection was taken by defence counsel at trial to the course proposed and by the further fact that the witness’ testimony, conceding as it did that there had been two incidents of sexual intercourse with Ms Yeung on 11 September and that he had disposed of two used condoms, was largely common ground.

29. We are satisfied that this complaint does not found a basis for allowing the application.

The hearsay issue

30. Of greater concern to us, however, is the degree to which hearsay evidence was adduced in this case and used by the prosecutor in support of the prosecution case.  

31. It appears that by some understanding between prosecuting and defence counsel at trial (Mr Haynes for the defence, Mr Ryan for the prosecution) it was agreed to take no objection to hearsay evidence, so long as the judge directed the jury from time to time and in the course of her summing-up that evidence of the statements of the declarant wife was not evidence of the truth of the statements but merely evidence of the fact that they were made.  Such periodic directions to that effect were given.  

32. The problem with this approach was several-fold:

(1) evidence of the statements was, on each occasion, obviously led for the sole purpose of asserting their truth;

(2) protestations or directions that they were not adduced for the truth of their content were not only misleading but must have left the jury puzzled and since they were directed that the statements were only adduced to prove that they were made, the question necessarily arises as to the relevance of the fact that they were made.  That question was never answered; indeed it could not be answered precisely because the statements were adduced for their truth;

(3) the jury is likely to have treated evidence of the statements as going to the truth of the statements; and

(4) the prosecutor utilised the truth of at least one of the statements on an important issue, to discredit a key feature of the defence case.

33. In prosecuting counsel’s opening speech[1], he referred to the evidence which he anticipated would emanate from Mr Luk, in which regard he told the jury:

“He will say that in early September 2009, he met up with the deceased. At that time, she had complained about the accused and asked [him] if he would help her find a flat. He will say that at about, or just after, 7 pm on 11 September 2009, he got a call from the accused who asked him if the deceased was with him and he replied that she was not with him. At around 5:40 am on 12 September 2009, he received a call from the deceased who told him she was scared of the accused. He told her if she felt she was in danger, she could call him and he would help her to call the police.” (Emphasis added)

34. An opening along these lines would normally call for some intervention but we see that during the cross-examination of the witness Chan, Mr Ryan – surprisingly, one might think, given the complete latitude which he had been permitted in respect of hearsay – objected to a piece of hearsay which Mr Haynes had sought to elicit.  The exchange which followed is relevant:

“MR RYAN: My Lady, I’m concerned about these questions in that they appear to be trying to elicit hearsay evidence as truth of what was said.

COURT: As proof of - - yes, exactly.

MR HAYNES: No, I just want to – it isn’t elicited to establish the truth of what was said, it’s elicited to see whether the victim spoke of both sides of the coin, whether it be true or untrue. We’ll never know, I don’t suppose. It seems to me, with respect, my Lady, my learned friend and I discussed whether we should exclude all the hearsay evidence, or some of it, and it seemed that it was either all in or none was in, seemed to be the only fair way of approaching it.

COURT: We’ve only got this statement to go on.

MR HAYNES: Well, for example, yes, he said that he was told that my client was bad-tempered, well, I suppose I could technically have objected to that, but since we know that it’s only hearsay, I didn’t.

COURT: Well, I’m not quite certain how much of this is relevant in any event, given that this witness is not directly connected with the matter.

MR HAYNES: Well, I’ll put it in general terms.”[2]

35. We do not know what transpired between prosecuting and defence counsel to lead to this understanding but we think it is safe surmise from all the evidence – some of which we will shortly touch upon – that Mr Haynes was anxious to establish that the applicant had never previously resorted to physical violence upon Ms Yeung and (the applicant’s testimony apart) that is something which he could only do through the introduction of hearsay evidence.  Yet conversations which Mr Luk had held with Ms Yeung from which that evidence was to be gleaned, also showed (if her complaints to him were true) that the applicant very often lost his temper and that she was frightened of him.  So, one supposes – and this supposition was not gainsaid during the course of the appeal hearing – that the prosecutor took the view that if hearsay evidence was to be admitted to paint a picture favourable of the applicant, it was only just that the full picture be painted.

36. So that is the background against which we now examine what happened in relation to hearsay.

37. Shortly after Chan commenced his evidence-in-chief, he related how he came to know Ms Yeung and that she lived with the applicant.  Then this:

“Q. Did she indicate to you how she was getting along with Liang Yaoqiang?

Mr Haynes : My Lady, I just wonder if your Ladyship might remind the jury that any answer that is given is hearsay and is not evidence of the truth of what was said.

Court: Yes, I would remind you, members of the jury, that this is what we call ‘hearsay evidence’ and it can only be taken as evidence of what was said, not as to the truth of the content of the material.

….

A: She said that he lost temper very often.

Q: Did she tell you how she felt about this?

A: Very frightened.”[3]

38. It is impossible to accept that this was led as evidence only of what was said, rather than as evidence of its truth.  There was no attempt at an identification of its relevance as a statement made and no explanation by the judge to the jury of the issue to which the making of the statement, if not as to its truth, was relevant.  Given counsel’s “understanding” in this regard, the judge had been placed in an impossible, and the jury in a confusing, position.

39. The applicant’s propensity to lose his temper was hardly a side-issue in this case.  That much is evident from the judge’s appropriate direction in relation to the issue of provocation, when she addressed the question which the jury had to ask themselves, if they concluded that there was or may have been provocative conduct which had caused the applicant to lose his self-control, namely, the question whether that conduct may have been such as to cause an ordinary and sober person of the applicant’s age and sex to do as he did:

“So what is to be expected of an ordinary person? The law expects people to exercise control over their emotions. If, for example, a person has an unusually volatile or excitable or violent nature or is intoxicated, he cannot rely on that as an excuse.

So the ordinary person in this context is a person who is not exceptionally excitable or given to violence, but is possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today.”[4]

40. The hearsay evidence adduced was plainly evidence that the applicant was an unusually excitable person.  Because the declarant did not (and could not) testify, the reliability of her declaration to that effect could not be tested; which is precisely why such evidence is not admissible to establish its truth.

41. Hardly surprisingly, counsel for the applicant was anxious to undermine the truth of the statement about his client’s temper.  This is evident from the following exchange which took place in the course of cross-examination:

“Q: ... during those meals, she told you some things about her boyfriend, is that right?

A: Yes.

Q: But you have never met, or ever spoken with her boyfriend, have you, you yourself?

A: Correct.

Q: So you could not know whether the things she said about him were true or not.

A: I learnt from her that it was true.

Q: Yes, but you had no firsthand knowledge, except from what she said.

A: Correct.”[5]

42. Then Mr Hayes referred to a part of one of Chan’s witness statements in which he had said that Ms Leung had told him that the applicant was given to “throwing things about at home”[6]; and then this:

“Q: Among the things she said about her boyfriend, she told you that her boyfriend was ill-tempered, is that right?

A: Yes.

Q: And she said that she would like to break up with him.

A: Yes.

Q: And when she said such things to you, did you think that she was making excuses for having a love affair with you and being unfaithful to her boyfriend?

….

A: No.”[7]

43. A little later:

“Q: You’ve told us that Yeung … had told you that her boyfriend was bad-tempered.

A: Yes.

Q: But didn’t she also tell you that although he argued with her, he had never ever struck her or assaulted her?

A: She only mentioned that a knife was used to chop a mobile phone.

Q: Yes. She claimed to you that he had once given vent to his anger by cutting his mobile phone with a knife.

A: Yes.

Q: And did you believe her?

A: Yes.

Q: But of course, you could not see the telephone to see whether or not there were any knife marks on it, you had no proof.

A: Correct.”[8]

44. This testimony about cutting the mobile telephone evidently took defence counsel by surprise, for more than once he sought to establish that this was not a fact within the witness’ own knowledge and counsel returned to the theme that Ms Leung had told him, Chan, that the applicant had not beaten her.

45. In the course of examination-in-chief, Mr Luk testified that Ms Yeung had called him at about 5:40 am on 12 September 2009.  Counsel for the prosecution asked him “What conversation took place?”  This entirely open-ended question was met with no objection by counsel for the defence and the witness provided the following answer:

“She said that she was very frightened because she said that [the applicant] had an argument with her. And then in the evening of the 11^th, they argued on the issue of living apart and she said that [the applicant] had shouted that he would jump out from the building and she said that [the applicant] left the home immediately. And then she said that, later on, [the applicant] gave her a call, telling her that since he had no money, he wondered if he would be allowed to go back to stay for one night. And then I asked her if he had hit her. If he had, then I could make a report to the police for her. And then in reply, she said he had not and he had gone to sleep at shortly after 1 o'clock. And then I said to her that if she had any further needs, then she could give me a call. And then I hung up the phone.”[9]

46. He tried calling her from 6:30 am but there was no answer until the applicant answered at about 7:10 pm.  The applicant said that Ms Yeung had gone to work.

47. In cross-examination of Mr Luk, Mr Haynes was concerned to emphasise the fact that she had said that the applicant had not beaten her.

48. Re-examination consisted of but one question, as to how the applicant had sounded when she telephoned in the early morning of 12 September:

“Q: … Did she sound calm, or worried, or scared, or how was she?

A: Very scared and she was in tears.”[10]

49. There followed some questions by the court commencing with the question whether Ms Yeung had provided any reason why the row started “or what his behaviour was like in respect of his threat to jump off the building?”  But the witness said that she had not mentioned the reason for the argument.[11]

50. To the issue at hand, particularly in the light of prosecuting counsel’s closing speech, the applicant’s evidence is relevant in that he testified that when he threatened to leave the premises on the night in question “she immediately came over to embrace me” saying “Don’t leave me alone”.[12] So he stayed.

51. The applicant’s failure to leave the premises on the night in question was raised in cross-examination:

“Q: Now, when, on 11 September, you came home and you found the condom that you claim was in your rubbish, and you then had further evidence, you say, that she was being unfaithful, why didn't you then decide it was time for you both to separate?

A: I did decide to separate from her, but she did not allow me to go.

Q: All you had to do was walk out the door, wasn’t it?

A: Because I loved her very much.

Q: Wouldn't it have been the reasonable thing to do just to get up and leave the flat to avoid any further confrontation?

A: I had left the flat previously, but she kept on embracing me, preventing me from leaving. And she also said that if I left, she would immediately make a telephone call to my parents and tell them, alleging that I dumped her, and she would also kill herself immediately in front of me, so that I cannot explain the matter to my parents.”[13]

52. It was then put by prosecuting counsel to the applicant that he had taken the view that if he could not have her “nobody else would and that’s why you started chopping her.”[14]  This reflected the first line of attack in the prosecution case, namely, that this was not a case of provocation but rather that the applicant had decided, for the reason there suggested, to do away with Ms Yeung.

53. Against this detailed background, we come to prosecuting counsel’s closing speech.  In the course of that speech he said this:

“You heard the deceased’s ex-husband ... say that in the morning of 12 September, the deceased telephoned him and told him that she was scared of the accused, and he’d later tried to call the deceased, about 6:30 am, but he was unsuccessful. On the point of being scared of the accused, you will recall that, in his evidence yesterday, he [the applicant] said that in fact he wanted to leave at one stage.

When I asked him wouldn’t it have been the reasonable thing to do, to leave, he said that he wanted to leave but she stopped him from doing so, threatened to tell the parents and made all these threats and insisted that he stay and prevented him from leaving. Well, you might ask yourself how is that consistent with her telephoning her ex-husband and saying that she was scared of the accused. If she was scared of him, would you not think that she would want him to leave the flat?”[15] (Emphasis added).

54. It is open to argument whether the effect of Luk’s evidence was that Yeung was scared of the applicant or, on the other hand, scared of the situation in the light of the applicant’s threat to jump from the building; but taken together with Chan’s evidence that Yeung had said that the applicant was given to losing his temper, had used a knife to damage a mobile telephone and that she was very frightened of the applicant, the effect of the hearsay evidence in combination was quite clearly to suggest that she was scared of him.  If there were any doubt as to the prosecutor’s purpose in adducing this evidence, such doubt was laid to rest by the closing submission that, given her fear of the applicant, Yeung was hardly likely to have begged him to stay.  Counsel was relying on the truth of what Yeung had told both Chan and Luk; that in truth he was given to losing his temper and that in truth she was scared of him.

55. Despite that, the learned judge, faced with this unusual approach by both counsel, and influenced no doubt by the fact that it was an approach endorsed by defence counsel, repeated the direction to the jury on a number of occasions during her summing-up that evidence of these statements was not evidence of their truth.  

56. But, as we have earlier indicated, the difficulty was that the jury was bound to be confused as to what, then, was the relevance of these statements; and it is unrealistic to suppose that the jury did not use the statements as evidence of their truth.  That was an impermissible purpose, a flaw which was not a mere technicality for the statements, if true, went materially to undermine the defence of provocation.

57. We have asked ourselves what effect the “understanding” reached by counsel, and the absence of any objection by defence counsel to prosecuting counsel’s closing speech, has on our conclusion that there was a wholesale admission of inadmissible evidence, which, in our view, enured to the applicant’s disadvantage.  It may be said with some force that where defence counsel makes a tactical decision of this kind which he perceives to be to the advantage of his client – and there was some advantage, perhaps, gained by the evidence that the applicant was not given to beating Ms Yeung – the court should be slow, absent an assertion of incompetence, to conclude that the conviction is unsafe or unsatisfactory.

58. The problem in this case is that the understanding between counsel and the tactical decision by defence counsel was made upon an entirely illogical basis, which was that no harm would accrue so long as the judge directed the jury in relation to each piece of hearsay evidence that it was not admissible as to its truth even though, that was, on each occasion, the very purpose for which it was adduced.  The approach adopted can only have had one of two consequences: either wholly to confuse the jury or to leave open the high probability that the jury would use the evidence impermissibly and do so to the disadvantage of the applicant.  Neither consequence is acceptable and given the degree to which the inadmissible evidence went to undermine the defence of provocation, it can hardly be said that the conviction for murder is safe or satisfactory.

59. For this reason alone, the application is allowed, the hearing of the application treated as the appeal, the appeal allowed and the conviction for murder quashed.  We shall shortly return to the question of retrial (for which the respondent argues) or substituting a conviction for manslaughter (for which the applicant argues).

Proportionality

60. There is however another issue raised on the application which merits comment.

61. Counsel for the prosecution concluded his closing submissions to the jury as follows:

“If you are ... satisfied that [the defendant] was not provoked, then you will convict the accused of murder. However, if you decide that he was, or may have been, provoked, then you must consider whether the provocative conduct may have been such as to cause a reasonable and sober person of the accused’s age and sex to do as he did. I submit that you can be satisfied from the evidence so that you feel sure that he was not provoked.

However, if you decide he was, or may have been, provoked, I submit that no reasonable person would have done as he did. The infliction of 209 or thereabouts chop wounds to the victim’s body is out of all proportion to any possible provocation.”[16] (Emphasis added)

62. This submission by prosecuting counsel is said by Mr McCoy SC to constitute a material irregularity which ought to have been, but was not, corrected by the judge.  The argument is that the notion of proportionality, whilst apt to the defence of self-defence, has no place in the context of the defence of provocation.  The argument is that once it is accepted by the jury that the provocation offered would or may cause a reasonable person to lose his self-control, no further inquiry is warranted into the nature and degree of the consequent conduct since, by definition as it were, a loss of self-control envisages the likelihood or at least the possibility of an uncontrolled frenzy of extraordinary violence.

63. This is a submission with which we do not agree.

64. Section 4 of the Homicide Ordinance, Cap 339 provides that:

“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; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.”

65. This provision is a copy of s 3 of the Homicide Act 1957 of England and Wales.  Against the background of that legislation, the proper direction to the jury to be left for their exclusive determination was suggested by Lord Diplock in R v Camplin [1978] AC 705 at 718.  It is a direction which has since been followed in that jurisdiction, and in this jurisdiction, as well as in others where a like provision has been adopted:

“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.” (Emphasis added)

66. The passage there emphasised renders it entirely clear that the appropriate test posed for the consideration of the jury is not the two-stage test which is the effect of Mr McCoy’s submissions, namely, first, whether the accused was provoked into losing his self-control and, second, whether the ordinary person of the sex and age of the accused would in like circumstances be provoked into losing his self-control; but that there is a third stage which is the further question whether that ordinary person would lose his self-control to such an extent as did the accused; in other words, whether the ordinary person having lost his self-control would have retaliated in a like manner.  Where the defence of provocation is raised, the burden lies upon the prosecution to prove that the accused was not provoked into losing his self-control or, if he was or may have been, that an ordinary person would not in like circumstances be provoked to lose self-control or that an ordinary person of the sex and age of the accused would, even though losing his self-control, not have reacted to the provocation in like manner.

67. In the context of a statutory provision enacted in Jamaica in the same terms as section 3 of the Homicide Act 1957, counsel for the appellant in an appeal to the Privy Council, Phillips v The Queen [1969] 2 AC 130 advanced precisely the same submission as presented to us upon this application which was that:

“ ... as a matter of ... logic, … once a reasonable man had lost his self-control his actions ceased to be those of a reasonable man and that accordingly he was no longer fully responsible in law for them whatever he did.”[17]

68. Their Lordships rejected this argument saying:

“This argument is based on the premise that loss of self-control is not a matter of degree but is absolute: there is no intermediate stage between icy detachment and going berserk. This premise, unless the argument is purely semantic, must be based upon human experience and is, in their Lordships’ view, false. The average man reacts to provocation according to its degree with angry words, with a blow of the hand, possibly, if the provocation is gross and there is a dangerous weapon to hand, with that weapon.

….

Since the passing of the legislation, it may be prudent to avoid the use of the precise words of Viscount Simon’s, in Mancini v Director of Public Prosecutions [1942] AC 1 “the mode of resentment must bear a reasonable relationship to the provocation” unless they are used in a context which makes it clear to the jury that this is not a rule of law which they are bound to follow, but merely a consideration which may or may not commend itself to them. But their Lordships would repeat that it is the effect of the summing-up as a whole that matters and not any stated verbal formula used in the course of it”[18]

69. In R v Brown [1972] 2 QB 229, the Court of Appeal of England and Wales said:

“In the view of this Court, when considering whether the provocation was enough to make a reasonable man do as the accused did, it is relevant for a jury to compare the words or acts or both of these things which are put forward as provocation with the nature of the act committed by the accused.  It may be, for instance, that a jury might find that the accused’s act was so disproportionate to the provocation alleged that no reasonable man would have so acted.  We think, therefore, that a jury should be instructed to consider the relationship of the accused’s acts to the provocation when asking themselves the question “Was it enough to make a reasonable man do as he did?”  We feel that Lord Diplock’s warning[19] should be followed and that it would be better not to use the precise words of Viscount Simon L.C. unless it is made quite clear that it is not a rule of law which the jury have to follow.”[20]

70. The authorities are, therefore, all one-way and illustrate the illogicality underlying the submission before us.  The appeal would not have succeeded on this ground.

The Langton/Paria point

71. In the course of her summing-up the judge delivered the standard direction in relation to good character saying that the relevance was twofold: first, the applicant having testified, his good character supported his credibility and, second, “the fact that he is a man of good character may mean that he is less likely than otherwise might be the case to commit such a crime now.”

72. It may be said that, closely analysed, there is a flaw in the logic of the second limb of such a direction in cases where an accused pleads not guilty to a charge of murder yet guilty to manslaughter on the basis of provocation and where the issue is whether there were words or conduct or both that caused the appellant to lose his self-control.  In such a situation, the accused has admitted that he has committed homicide so there is a certain illogicality in telling a jury that the fact of his good character means he is less likely than otherwise might be the case to commit “such a crime”.  A juror, thinking logically, might well say to himself: “But the accused has admitted committing a crime (manslaughter), and a serious one at that.  So how does his good character help him, other than in relation to his credibility?”  This is the theme of the observation of Lord Taylor CJ in R v Vye [1993] 1 WLR 471 at 477:

“The defendant’s argument that he has never stooped to murder before would be countered by the fact that he had never stooped to manslaughter before either. Nevertheless, there might well be a residual argument that what was in issue was intent and he had never shown any intent to use murderous violence in the past.”

73. The suggestion was made by the Privy Council in Langton v The State [2000] UKPC 19 at para 4 that in such a case a jury should be reminded “that they could take account of the fact that a man of good character might be unlikely to indulge in very serious violence without first being provoked.”  This approach has been endorsed by the subsequent decision of the Privy Council in Paria v The State [2003] UKPC 36.

74. That is a formula open to judges to use in appropriate cases although since the standard direction tends to convey the message that a defendant by virtue of his good character is less likely to be guilty of that which is alleged against him, namely, an unprovoked killing with intent, the failure to use the Langton direction is most unlikely to constitute a material error: see HKSAR v WONG Lau Hing, CACC 374 of 2011, unreported 29 October 2013.

Retrial

75. Mr McCoy invited the Court, in the event that it were to allow the appeal, to substitute a verdict of manslaughter.  Mr Zervos asked for a retrial.

76. Whilst there was clearly evidence to support the contention that the applicant was heavily provoked, there was also evidence that after his discovery of the fact that Ms Yeung had on 11 September 2009 been unfaithful, he and she had had sexual relations and evidence also of an extremely violent attack by him upon her.  We think the questions to be resolved are essentially apt for jury determination upon a proper presentation of the evidence and, accordingly, we order that the applicant be retried upon a fresh indictment for the offence of murder.  The case should be set down for a hearing within three months.

[1] Transcript p 554 appeal bundle.

[2] ibid p 531A-J.

[3] ibid p 514.

[4] ibid p 22.

[5] Appeal bundle page 524.

[6] Appeal bundle p 524.

[7] ibid page 525.

[8] ibid page 529.

[9] page 539.

[10] page 544.

[11] page 544.

[12] page 594.

[13] pages 606-607.

[14] page 609.

[15] page 558.

[16] page 562.

[17] at 137H.

[18] at 137H-138D.

[19] in Phillips v The Queen, see para 62 above.

[20] at 234B-C.