HKSAR v. LIANG YAOQIANG

CACC 131/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 131 OF 2014

(ON APPEAL FROM HCCC NO. 457 OF 2013)

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JUDGMENT
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Hon Lunn VP and Macrae JA:

1.  On 30 June 2015, the applicant’s application for leave to appeal against conviction on a count of murder was refused by a majority of the Court (Lunn VP and Macrae JA, McWalters JA dissenting). On 6 July 2015, the applicant applied for a Certificate, under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, in the following terms:

“Is it a correct approach in law to combine the two steps (being constituents (c) and (d) in R v Smith (Morgan) [2001] 1 Cr App R 13 [224] per Lord Hobhouse), into a single step?”

2.  The parties have consented to the determination of this application on the papers.

3.  In the appeal before this Court, the applicant’s argument in relation to the first perfected ground of appeal had turned on whether the trial judge had properly directed the jury to assess the gravity of the provocation for the applicant, given his personal attributes and past history and relationship with the deceased, when assessing whether a reasonable man confronted with that degree of provocation might have reacted in the way that the applicant did.

4.  The majority of the Court held that the judge had adequately directed the jury in this regard and relied, in particular, upon a passage in the judge’s summing-up (at para’s 6 and 52 of the judgment) to this effect:

“There is still a question of whether an ordinary person of the accused’s age and sex would have done what he did. If you feel sure that an ordinary person of his age and sex, even in the accused’s circumstances and even having undergone all the provocation which the accused told you that he had undergone at the time of the killing and leading up to it over a considerable period, would not have done what the accused did, then the doctrine of provocation would not operate to reduce murder to manslaughter. In that situation, if you feel sure that the accused intended to kill the deceased or at least to cause her really serious injury, you will find him guilty of murder.” (Emphasis supplied)

5.  The minority of the Court held that such direction was not an adequate direction on the question of the gravity of the provocation to the applicant.

6.  No argument was directed during the hearing of the appeal at the correctness of the existing legal directions on provocation as approved by the Hong Kong Judicial Institute for use by judges in Hong Kong, and neither leading counsel for the applicant nor any member of the Court has said those directions are incorrect.  Nor was there any disagreement that the approach set out by Lord Hobhouse in R v Smith (Morgan) [2001] 1 Cr App R 31, at 104 [para 224], endorsed by Lord Nicholls in Attorney General for Jersey v Holley [2005] 2 AC 580, at 594G and applied by the Hong Kong Court of Final Appeal in Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354, at 367A-B, represents the law as it should be, and currently is being, applied in Hong Kong.  Where the judgments of the majority and minority in this Court differed was in the contention by the minority that the law in this area might achieve “greater clarity and simplicity” by adopting a different formulation of the specimen direction, namely that appearing in the Victorian Criminal Charge Book of 2006.  The majority did not accept that contention.

7.  It will be seen, therefore, that the issue posed by the certified question has somewhat metamorphosised from the original ground of appeal and now seeks to exploit a disagreement between the majority and the minority of the Court; which disagreement, in the view of the majority, is academic if the passage from the summing-up referred to above adequately conveys the approach of Lord Hobhouse.  In short, the certified question has become an argument about an argument.  It is not, with respect, a point of law of great and general importance which arises from the decision of this Court.  And, even if it could be so characterised, the law in this area is now well settled.

8.  It is true, as Mr McCoy SC has said, that the law in relation to provocation has in the past been a fertile ground for judicial disagreement and, as this case perhaps demonstrates, the continued legal arguments which those disagreements have encouraged.  However, the specimen direction on provocation approved by the Hong Kong Judicial Institute, and applied by our courts, in our view properly reflects the approach of Lord Hobhouse in simple, uncomplicated terms, which should be readily comprehensible to a jury.  As Lord Hobhouse himself went on to say in Smith (Morgan), at 106 [para 226]:

“If the scheme which I have set out above is followed, there should be no difficulty in directing the jury using simple and clearly understandable language. No artificialities are involved and the contradictions involved in the approach contended for by the defendant are avoided.”

9.  In our judgment, as we have earlier explained in the judgment at the hearing of the appeal, the passage quoted from the summing-up (at para 4 supra) properly conveyed to the jury in “simple and clearly understandable language” that they should view the provocation in the circumstances of the applicant and in the light of all the provocative conduct which he said he had undergone at the time of, and leading up to, the killing.  As the High Court of Australia held in Stingel v R (1990) 97 ALR 1, at 10:

“Even more important, the content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused. Were it otherwise, it would be quite impossible to identify the gravity of the particular provocation.”

10.  Accordingly, we would refuse the grant of the Certificate sought.

Hon McWalters JA:

11.  As Lunn VP said in his judgment in this case, the issue the Court had to address was whether or not the trial judge’s direction to the jury “was an adequate direction in respect of the law and the relevant evidence in respect of the second limb of provocation.”[1]  As Lunn VP went on to point out, there was the narrow issue of whether a particular part of the judge’s direction “brought home to the jury that, in the context of the second limb of the direction that they had received in respect of provocation, they were required to have regard, as the first element, to the gravity of the provocation to the applicant himself.”[2] This reflected the first ground of appeal, which is that the judge “failed to direct the jury to assess the gravity of the provocation when assessing the second, objective limb of the defence of provocation, namely, whether the provocation was enough to make a reasonable man do as he did.”[3]

12.  Addressing these issues involved a consideration of what the law in Hong Kong required a judge to convey to a jury when directing them on the second limb of provocation and hence the discussion of the statement of the law by Lord Hobhouse in R v Smith (Morgan) [2001] 1 Cr App R 31.

13.  Consequently, in my view the appeal was not just concerned with the words that the judge employed in directing on the second limb; it was also concerned with whether the statement of the law by Lord Hobhouse required that the jury be directed to consider, as a discrete issue, the gravity of the provocation to the defendant.  It was on that issue that I went on the consider whether by combining the (c) and (d) steps of Lord Hobhouse’s formulation there was a danger of undermining the importance of this as a discrete question when the jury came to determine whether the defence of provocation had been disproved.  I am, therefore, of the view that the point of law sought to be certified is a point of law that was involved in the decision.

14.  However, should I be wrong in this conclusion, I believe that given the gravity of the offence, and of the consequences to an offender convicted of it, this is an appropriate question for the Court of Final Appeal to consider.  In this respect, I note that in Chiu Wing Nam v HKSAR (2006) 9 HKCFAR 850, at 856, Li CJ observed that “the phrase ‘involved in the decision’ in section 32(2) should not be so narrowly construed to preclude the Court from entertaining a point of law of great and general importance which was not raised in the Court of Appeal.”

15.  I would, therefore, grant the Certificate as sought.

Hon Lunn VP:

16.  Accordingly, by a majority, we refuse the grant of the Certificate sought.

[1] Paragraph 6 of the judgment.

[2] Paragraph 7 of the judgment.

[3] Quoted by Macrae JA at paragraph 36 of the judgment.