HO HOI SHING v. HKSAR

FACC No. 1 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2008 (CRIMINAL)

(ON APPEAL FROM CACC NO. 244 OF 2006)

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J U D G M E N T

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Chief Justice Li:

1.  At the conclusion of the hearing, we allowed the appeal, quashed the conviction, ordered a re-trial, remanded the appellant in custody pending re-trial and made no order as to costs. We now hand down the reasons for our decision which are given by Mr Justice Chan PJ.

Mr Justice Chan PJ:

2.  In the early morning of 24 April 2000, the semi-naked body of Madam Chung Koi-wun (“the deceased”) was discovered beneath a heap of tablecloths in a storeroom of the Hang Fook Lau Seafood Restaurant (“the Restaurant”) in Hunghom. She was the head cashier of the Restaurant. The cause of death was manual strangulation. The time of death was estimated to have been 2 a.m. on that day. The appellant was suspected of being connected with the death of the deceased. This was because only a few days before, on 21 April 2000, he was dismissed by the Restaurant where he was then working as a deputy manager. Also, according to the records of the Immigration Department, he left Hong Kong for China through Lo Wu Terminal at around 8 a.m. on the day when the body of the deceased was found. He did not return until five years later. On 28 July 2005, he surrendered himself to the authorities in Guangdong and was returned to Hong Kong.

3.  Upon being handed over to the Hong Kong Police, the appellant admitted having killed the deceased. In two subsequent video recorded interviews at the Police Station, he explained what happened. He said that in the evening of 23 April 2000, he had returned to the Restaurant and asked the deceased to speak to her brother who was the proprietor of the Restaurant so that her brother would continue to employ him. The deceased refused to help him and asked him to leave the Restaurant, threatening to call the watchman if he did not do so. According to him, acting out of momentary rage and fury, he pushed her onto the ground and strangled her. He then dragged her body to the storeroom, removed some of her clothes, and covered the body with tablecloths. Using the keys which he took from the deceased, he gained access to the accounts office and took away $19,000.

The trial and the verdict

4.  The appellant was charged with the murder of the deceased. At the beginning of the trial, the appellant offered to plead guilty to manslaughter on the basis of provocation. This was rejected by the prosecution. At the trial, his defence was, as expected, provocation. He elected to testify and gave a more detailed account of the events on the evening in question. He said that he did not intend to kill or hurt the deceased when he went to see her. He begged her to ask her brother to re-instate him. But the deceased refused to help him. She even told him that he would not be able to work in any of the restaurants run by the same organization. She asked him to leave the premises and threatened to call the watchman to get him out. She even pushed him and this had made him very angry. He lost control of himself and his mind was blank. He pushed her to the ground and sat on her. He seized her neck and started to strangle her until there was no response from her.

5.  Before the judge (Lunn J) summed up to the jury, counsel for the prosecution requested the judge to direct the jury on the possible verdict of manslaughter by unlawful and dangerous act. This was supported by counsel for the appellant. However, the judge declined such invitation and this alternative was not placed before the jury. Having deliberated for nearly six hours, the jury indicated that they were split at 4 to 3 and sought further directions on the second aspect (that is, the objective aspect) of provocation. After consulting counsel for the parties, the judge gave a further direction to the jury. They retired for another 20 minutes before returning a verdict of guilty of murder by a majority of 6 to 1.

The appeal before the Court of Appeal

6.  On appeal to the Court of Appeal (Stuart Moore VP and Burrell and Beeson JJ), two main grounds of appeal were argued by the appellant. The first complaint was that the trial judge was wrong in withdrawing from the jury the option of manslaughter by unlawful and dangerous act. The second ground was that the judge’s further direction on provocation was unfair and unbalanced against the appellant. The Court of Appeal rejected both grounds and dismissed his appeal.

7.  With leave of the Appeal Committee on the substantial and grave injustice limb, the appellant appealed to this Court. He relied on the same two grounds, submitting that the Court of Appeal was wrong to uphold the conviction and dismiss his appeal.

Trial judge’s reasons for withdrawing alternative from jury 

8.  In declining the invitation to direct the jury on the alternative verdict of manslaughter by unlawful and dangerous act, the trial judge considered that it would not be in the interests of justice to do so. He said:

“In my judgment, in the circumstances of this case, it is not appropriate to leave to the jury the alternative verdict of manslaughter by an unlawful and dangerous act. In my judgment, it is not in the interests of justice so to do. I have in mind the observations made by the then Lord Chief Justice Woolf in the judgment of the Court of Appeal in The Queen v Coutts [2005] 1 Cr. App. R Case 31 at paragraphs 83 and 84.”

9.  In the two paragraphs in Coutts referred to by the trial judge, the English Court of Appeal expressed the view that the jury was only required “to be directed as to manslaughter as an alternative to murder, when it is in the interests of justice for this to happen”; and it would not be in the interests of justice if it would result in unfairness to the defendant, or make the jury’s task far more difficult without any sufficient countervailing benefit which justifies placing such an additional burden on the jury. However, this decision was reversed by the House of Lords shortly after the trial in the present case. See [2006] 1 WLR 2154.

Court of Appeal’s reasons for upholding withdrawal of alternative

10.  The Court of Appeal had the benefit of the House of Lords decision in Coutts and seemed to have accepted the relevant principles as stated by the House of Lords and in the earlier Privy Council decision of R v Von Starck [2000] 1 WLR 1270 which was approved by the House of Lords in Coutts.

11.  Counsel then appearing for the appellant submitted that the trial judge was wrong to have withdrawn from the jury the alternative of manslaughter by unlawful and dangerous act since there was sufficient evidence for this alternative to be considered by the jury. Several parts of the appellant’s evidence were relied on in support of this submission. The Court of Appeal dealt with such evidence in turn but took the view that the appellant’s evidence was directed to the defence of provocation and did not suggest a lack of intent to cause grievous bodily harm at the time of the killing. The court considered that there was no proper basis for unlawful act manslaughter to have been put before the jury, there being no evidence to justify such a conclusion. It also held that the evidence left open only the possible alternative of manslaughter by reason of provocation. In coming to its conclusion, the court referred to and was obviously influenced by the appellant’s earlier offer to plead guilty to manslaughter on the basis of provocation which was not accepted by the prosecution.

Duty of the trial judge

12.  It is not disputed that the judge in a criminal trial is under a duty to place before the jury all possible alternatives which are open to them on the evidence. He is not absolved from this duty even if a particular alternative is not raised by the parties or is inconsistent with the defence run by counsel for the accused. As Lord Clyde in Von Starck [2000] 1 WLR 1270 put it at p.1275:

“It is his responsibility not only to see that the trial is conducted with all due regard to the principle of fairness, but to place before the jury all the possible conclusions which may be open to them on the evidence which has been presented in the trial whether or not they have all been canvassed by either of the parties in their submissions. It is the duty of the judge to secure that the overall interests of justice are served in the resolution of the matter and that the jury is enabled to reach a sound conclusion on the facts in light of a complete understanding of the law applicable to them.”

13.  The reason for imposing such a duty on the trial judge is obvious: it is in the public interest that an accused charged with an offence is properly dealt with according to the law. He should be convicted of, but only of, an offence which is proved to have been committed by him. As explained by Lord Bingham of Cornhill in Coutts, at p. 2159, para. 12:

“The public interest is that, following a fairly conducted trial, defendants should be convicted of offences which they are proved to have committed and should not be convicted of offences which they are not proved to have committed. The interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than his crime deserves, or acquitted altogether, enabling him to escape the measure of punishment which his crime deserves. The objective must be that defendants are neither over-convicted nor under-convicted, nor acquitted when they have committed a lesser offence of the type charged … It is the ultimate responsibility of the trial judge …”

Threshold requirement

14.  Not every possible alternative, however inconsistent with or unsupported by the evidence, has to be placed before the jury. An alternative is to be left to the jury only if there is evidence upon which a reasonable jury might return a verdict on that alternative. (See Lord Rodger of Earlsferry in Coutts, at p.2187, para. 81.) If it were otherwise, the jury may be confused or unnecessarily burdened with additional issues which do not stand the slightest chance of succeeding. This will not do justice to either the prosecution or the accused. The threshold requirement was succinctly formulated by Lord Clyde in Von Starck at p.1275Eas follows:

“If the evidence is wholly incredible, or so tenuous or uncertain that no reasonable jury could reasonably accept it, then of course the judge is entitled to put it aside. The threshold of credibility in this context is, as was recognized in Xavier v The State (unreported), 17 December 1998, Appeal No. 59 of 1997 a low one, and, as was also recognized in that case, it would only cause unnecessary confusion to leave to the jury a possibility which can be seen beyond reasonable doubt to be without substance. But if there is evidence on which a jury could reasonably come to a particular conclusion then there can be few circumstances, if any, in which the judge has no duty to put the possibility before the jury.”  

15.  That is to say, the evidence which may be relied on to support an alternative verdict must not be so incredible or tenuous or uncertain that no reasonable jury could have accepted it; in other words, an alternative verdict should not be put to the jury if there is no evidential basis upon which a reasonable jury could have come to that alternative verdict. That the threshold is, as Lord Clyde put it, a low one is consistent with the fundamental principle that it is for the prosecution to prove guilt beyond reasonable doubt.

16.  Mr Alain Sham leading Mr Isaac Tam for the prosecution did not seriously dispute this criterion. But at one stage during the arguments, he seemed to suggest that it would require some fairly cogent evidence to give rise to a sufficient foundation for an alternative verdict. If by “fairly cogent evidence” he was advocating for a higher threshold, that is, in our view, clearly wrong as being unsupported by authority and contrary to principle.

Whether sufficient evidential basis for the alternative

17.  Mr Gerard McCoy SC, leading Mr David Boyton for the appellant, submitted that the Court of Appeal was wrong in its approach to the evidence when deciding whether there was sufficient evidential basis for placing before the jury the alternative of manslaughter by unlawful and dangerous act and that in the present case, there was sufficient evidence for that alternative to be considered by the jury. On the other hand, Mr Sham argued that the Court of Appeal was right to conclude that the passages of evidence relied on by the appellant were not sufficient to give rise to a proper foundation for the alternative verdict. The crucial dispute between the parties is whether there was evidence which was not so incredible or tenuous or uncertain that no reasonable jury could have accepted it, suggesting that the appellant did not have the requisite intention to kill or to cause grievous bodily harm to the deceased at the time of killing.

18.  There was evidence which, if accepted by the jury, was capable of supporting the presence of an intention to kill or cause grievous bodily harm on the part of the appellant. It is also true that in the appellant’s oral admission under caution, his recorded interviews as well as his testimony in court, the main theme of his defence was that he was provoked by the deceased to lose his self-control and in a moment of fury, he strangled her. He had used phrases such as “I was unable to cool down”; “I could not control my emotion”; “I entirely lost control of myself”; and “I lost my common sense”. Such evidence, if accepted, is consistent with and may support the defence of provocation: having the hallmarks of the state of mind of a provoked person. However, there were in both his evidence-in-chief and cross examination also answers given by him which are not inconsistent with the lack of the requisite intent to kill or cause grievous bodily harm: such as, “I was confused”; “my mind was blank”; “nothing was going through my mind”; “I did not intend to kill her”; and “I did not intend to hurt her”. These answers must of course be examined and considered in the overall context and in the light of the main theme of his defence of provocation. However, in evaluating whether the evidence is sufficient to provide a proper foundation for the alternative verdict of manslaughter by unlawful and dangerous act, the judge must take a view of the evidence most favourable to the accused. See Lord Tucker in Chan Kau v R [1955] AC 206, 212 and also in Bullard v R [1957] AC 635, 643. Taking such an approach in the present case, it cannot, in our view, be said with any degree of confidence that the evidence of the appellant is so incredible, tenuous or uncertain that no reasonable jury could have accepted it, or that no reasonable jury, properly directed, could have reached the alternative verdict of manslaughter by unlawful and dangerous act.

Consequence of failure to direct jury on available alternative

19.  In Bullard, the defendant’s conviction of murder was quashed on the ground that the trial judge had wrongly withdrawn the issue of provocation from the jury. In allowing the appeal, the Privy Council considered that he had been deprived of his right to have the issue of manslaughter left to the jury and this necessarily amounted to a grave miscarriage of justice. Lord Tucker said at p.644:

“Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given. To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached.”

20.  Lord Rodger in Coutts took a similar view, saying that such a failure must be regarded as a material misdirection, thus rendering the verdict unsafe. He said at p.2191, in para. 91:

“In my view therefore, in a case where the judge has wrongly omitted to direct the jury on a viable alternative verdict, the failure to give the direction must be regarded as a material misdirection. In Bullard v The Queen [1957] AC 635, 644, the Privy Council considered that failure to give the appropriate direction on manslaughter in a case of murder would always be irremediable. In the absence of detailed argument on that particular point, it is enough to say that a failure to give the necessary direction must usually make the verdict unsafe since the appeal court will have no sufficient basis for concluding that a reasonable jury would inevitably have convicted the appellant of murder if they had been given the appropriate direction.”

21.  Mr Sham for the prosecution submitted that a quashing of the conviction does not necessarily follow from a failure on the part of the trial judge to direct the jury on an available alternative verdict. He argued that since the jury had rejected the defence of provocation and convicted the appellant of murder, they must have concluded that the appellant had the requisite intention of murder and must also have rejected the possibility of manslaughter by reason of an unlawful and dangerous act.

22.  The same submission was made by counsel for the prosecution in Coutts and was rejected by the House of Lords for the reasons with which we agree. It is impossible to speculate how the jury arrived at their verdict, especially where they had not been directed on all the viable alternatives. The jury were entitled to have the entire picture and all the viable alternatives placed before them. Their approach to the evidence might have been different depending on the options they have been given. As Lord Rodger said at p.2190, in para. 89:

“But [counsel’s submission] is to make an unreal assumption that, at all stages of their deliberations, the jury would keep the various issues in separate boxes, to be considered in a prescribed order. The reality is that, in the course of their deliberations, a jury might well look at the overall picture, even if they eventually had to separate out the issues of murder, manslaughter and accident. So, introducing the possibility of convicting of manslaughter could have changed the way the jury went about considering their verdict.”

23.  It is also impossible to say that the jury’s choice would not have been affected by the offers of alternative verdicts open to them. See Callinan J in Gilbert v R, (2000) 201 CLR 414, 441:

“It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered.”

24.  This was approved by Lord Hutton in Coutts who said at p. 2181, in para. 61:

“Therefore I consider that the House should … hold that, save in exceptional circumstances, an appellate court should quash a conviction, whether for murder or for a lesser offence, as constituting a serious miscarriage of justice where the judge has erred in failing to leave a lesser alternative verdict obviously raised by the evidence.”

25.  There is no exceptional circumstance in the present case. The failure to give a direction on the alternative of manslaughter by unlawful and dangerous act was a material misdirection and constituted a serious miscarriage of justice. On this ground alone, the conviction must be quashed.

The further direction on provocation

26.  The appellant also complained against the judge’s further direction to the jury on provocation. It would seem that at the time of the summing up, the jury were given a handout setting out, among other things, the matters which the judge wanted them to consider during their deliberation. These included the two questions on the subjective and objective aspects involved in the defence of provocation. Having deliberated for six hours, the jury informed the judge that they could not reach a lawful verdict (being deadlocked at 4 to 3) and sought further direction on the second aspect of provocation. The question they put to the judge was, it would seem, about the second question on provocation which was set out for them in the handout. It is clear that what they needed was further explanation of this aspect of the defence and how they should approach this question.

27.  In response to the jury’s question, the trial judge discussed the matter with counsel for the parties and indicated what he proposed to say to the jury. Counsel for the appellant raised objection which was not accepted by the trial judge. At the end, the jury were further directed as follows:

“ ‘May that conduct have been such as to cause a reasonable’ let me emphasize these words – ‘reasonable and sober person of the defendant’s age’ – let me add, 27 at the relevant time – ‘and sex’ – that is male – ‘to do as he did?’ A ‘reasonable person’ is simply a person who has that degree of self-control that is to be expected of the ordinary citizen who was sober and is of the defendant’s sex and age.

Therefore, when considering this question, you must take into account everything that was done and said according to the effect that, in your opinion, it would have on that ordinary – let me emphasize that – person. Now, members of the jury, you are ordinary, reasonable, sober people of Hong Kong. And let me add this direction. When deciding this, bear in mind that the law expects people to exercise control over their emotions.

The issue is – returning now to the question – may the conduct of Madam Chung have been such as to cause a reasonable and sober person of the defendant’s age and sex to do as he did? Well, what did he do? At midnight, in the course of what he said was an argument with Madam Chung, he pushed a middle-aged lady to the floor, jumped on her, sat on her, strangled her, ignoring her attempts to prise his hands away from her neck to save her life.

I hope, members of the jury, that that assists you in your further deliberations. If you need any further assistance, please formulate it, as you did on this occasion, with a further request for assistance and I’ll do the best I can to help you.”

28.  Following this further direction and having deliberated further for another 20 minutes or so, the jury returned the verdict of guilty of murder.

29.  Mr McCoy for the appellant argued that the judge’s further direction was unfair and unbalanced and had resulted in a verdict adverse to the appellant. It was said that this was evident from the little time taken for some of them to change their minds. Counsel relied on the case of Gassy v R [2008] HCA 18 in which the same thing happened and the Australian High Court considered that the speed with which the jury completed their deliberation was a telling indication of the deficiency of the impugned directions. In the present case, the main complaint was made only against the third paragraph set out above. Counsel submitted that the judge ought to have drawn the jury’s attention to what had caused the appellant to act as he did and the state of mind he was in at the time.

30.  In rejecting a similar submission (made by counsel who then appeared for the appellant on appeal), the Court of Appeal considered that the conduct of the deceased was already covered by the first question and in asking the second question, the jury must have already been satisfied that the deceased’s conduct might have provoked the appellant suddenly and temporarily to lose his self-control. The court took the view that the further direction given by the judge was entirely appropriate and was neither unfair nor unbalanced.

The second aspect of provocation

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

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

“In my opinion a proper direction to a jury on the question left to their exclusive determination by section 3 of the Act of 1957 would be on the following lines. The judge should state what the question is using the very terms of the section. He should then explain to them that the reasonable man referred to in the question is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused’s characteristics as they think would affect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but also whether he would react to the provocation as the accused did.”

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

Defects in the further directions

34.  The first two paragraphs of the judge’s further direction are unobjectionable since they were framed along the lines of the directions suggested by Lord Diplock in Camplin and the wording of s.4 of the Ordinance. However, in our view, the third paragraph and the direction as a whole are defective.

35.  The question asked by the jury was: may the conduct of the deceased have been such as to cause a reasonable and sober person of the defendant’s age and sex to do as he did? To answer this question, three matters have to be considered: first, what was the conduct of the deceased? second, what did the appellant do? and third, would a person (of the age and sex of the appellant) with an ordinary power of self-control have reacted as the appellant did? The first matter corresponds with the first element as stated by Lord Nicholls (i.e. an assessment of the gravity of the provocation). The second and third matters correspond with the learned Law Lord’s second element (i.e. an assessment of the reaction of a person with an ordinary power of self-control).

36.  However, in the third paragraph of his further direction, the trial judge merely referred to the evidence of what the appellant did to the deceased but had omitted to mention the evidence of what was said and done by the deceased. This is to be contrasted with what the judge had said in the summing up where, having followed the directions suggested by Lord Diplock in Camplin, and adopting the wording in s.4 of the Ordinance, he discussed in detail the evidence relating to what was alleged to have been done and said by both the deceased and the appellant. True it is that it is not necessary for the trial judge to repeat all the evidence again in a further direction. But to mention only what the appellant did to the deceased without making even a brief reference to the deceased’s conduct gave rise to the wrong impression on the jury that the appellant’s conduct was all that mattered. Such a direction was also seriously prejudicial in that it purported to give a vivid reconstruction of what the appellant did, stressing the “frenzy” of the attack. This only went to the first question, that is, did he lose self-control; but not to the second question on which the jury sought clarification: namely, would a person of ordinary self-control have reacted as the appellant did. In relation to this question, the jury should concentrate on the sufficiency of the provocation, not on the frenzy of the appellant. 

37.  Counsel for the prosecution, adopting the reasoning of the Court of Appeal, argued that in asking the second question, the jury must have already resolved the first question, that is, they were satisfied that the appellant was or might have been provoked by the deceased and hence the conduct of the deceased must have been very much in their minds. In our view, it is unhelpful to speculate what was or was not in the minds of the jury, if they had not been fully or properly directed.

38.  For these reasons, the further direction was, in our view, indeed unfair and unbalanced and constituted a material misdirection. On this ground, too, the conviction cannot stand.

Re-trial

39.  For the reasons stated above, the appeal must be allowed and the conviction must be quashed. There is no objection from the appellant to a re-trial. It is not appropriate to make any further comment on the evidence. Suffice it to say that it is in the interests of justice to order a re-trial.