HKSAR v. CHAN MAN SUM IVAN

CACC 400/2017

[2021] HKCA 796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 400 OF 2017

(ON APPEAL FROM HCCC NO 240/2017)

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J U D G M E N T

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Hon McWalters JA (giving the Judgment of the court):

1.  The applicant was charged with one count of murder, contrary to common law and punishable under section 2 of the Offences against the Person Ordinance, Cap 212, to which he pleaded not guilty. On 5 December 2017, after a trial before Anthea Pang J (“the judge”) and a jury, the applicant was convicted of murder and sentenced to life imprisonment. He subsequently filed a Notice of Application for Leave to Appeal against his conviction. The hearing of his appeal was adjourned on two occasions to enable further transcript to be obtained and for the applicant to amend his Perfected Grounds of Appeal.

2.  At the hearing of the application we reserved our judgment.  This is our judgment.

The first trial

3.  In order to properly understand the issues that arose in this appeal, it is necessary to have some understanding of the history of the proceedings relating to this applicant.

4.  This prosecution flowed from a police investigation of a missing person report.  The missing person was a young woman who had been the mistress of the applicant (“the deceased”).  Her body was never found and the applicant was charged with her murder on the basis of circumstantial evidence only.

5.  The applicant was first tried in August 2015.  At that trial he gave evidence and denied any involvement in the deceased’s death and pointed to evidence which suggested she was still alive.  Notwithstanding the absence of a body and any evidence as to how the young woman might have died the applicant was convicted of her murder.

6.  He successfully appealed his conviction[1] and was ordered to be retried.

The retrial

7.  In the retrial the applicant made a dramatic change to his plea by admitting that he killed the deceased and offering to plead guilty to manslaughter in respect of her death.  At the arraignment of the applicant, his counsel, Mr Steve Chui, confirmed that the applicant’s plea of guilty to manslaughter was on the basis of the applicant having killed the deceased by an unlawful act not accompanied by the mens rea for murder.  This plea offer was rejected by the prosecution.

8.  For the purpose of the trial it was made an admitted fact that the applicant killed the deceased “on or about 6 October 2011” and that on 17 November 2017 he had pleaded guilty to manslaughter on the basis of unlawful act manslaughter but this plea was not accepted by the prosecution. [2]  

9.  It was an admitted fact that the applicant was born in 1973, married in 2003 and had two sons born in 2004 and 2005.  He worked in the Corporate Finance Department of Guotai Junan International Holdings Limited and was a director of this company.  It was also admitted that the applicant came to know the deceased in 2007 when he met her in a night club where she worked as a hostess and that they became lovers in mid-2008.

10.  On 1 February 2009, the applicanttook out a life insurance policy for US$52,000 and on 29 October 2010 the deceased was made the sole beneficiary under it.

11.  The relationship was not without its problems for on 6 March 2009 the deceased was bound over for 12 months by the Fanling Magistrates’ Court.  The bind-over order arose from a physical altercation with the applicant during which the deceased, whilst intoxicated, assaulted him with her bare hands, causing abrasions and bruises to his face, and kicked his lower leg.  There was also evidence from the deceased’s brother to the effect that after consuming alcohol the deceased may become a bit violent.  But neither her friends nor the psychologist detected in the deceased any tendency to violence.

12.  The applicant’s wife came to know of the relationship between the applicant and the deceased around March 2011 and between 7 and 11 July exchanged text messages with her.  In these messages the deceased, unprovoked, made some rather ill-tempered comments to the applicant’s wife, which led to her accusing the deceased of being an escort to different people and a seducer of other people’s husbands.  This in turn led to even more aggressive responses from the deceased and provided further evidence of her fiery personality; of a person who can over-react to situations by attacking those who she perceives may stand in her way.    

13.  At the time of her death, the deceased lived in a flat in Amoy Gardens, to which the applicanthad an access card and which he had helped the deceased to purchase and renovate.

14.  The deceased last returned to this flat at 4:15 pm on 5 October 2011 and it was the prosecution case that she never left it before being reported missing by her elder brother on 16 January 2012.  CCTV evidence showed that the applicant twice went to the flat alone on the evening of 6 October.  On the first occasion, he stayed there for 1 hour 40 minutes, before leaving.  On the second occasion, he came back with a vacuum storage bag, a twin pack of heavy duty household gloves, one bottle of deodoriser, a box of small tools and four rolls of cling wrap, and left after an hour, returning to his office. 

15.  On the morning of 7 October, the applicant drove his car and went to the flat alone again, this time with a plastic bag.  He left half an hour later with a chequered bag on a trolley, and drove his car away. 

16.  Since no corpse was ever found, the prosecution sought to establish the applicant’s mens rea for murder by circumstantial evidence, including his post-killing conduct and lies.  This included the applicant’s swift disposal of the deceased’s body, the removal of personal belongings from the flat, and the sending of text messages to her friends and her psychologist (PW9) in order to create a false impression that the deceased was still alive. 

17.  At trial, the prosecution called 12 witnesses including the deceased’s elder brother, her friends or acquaintances (one such friend was PW2), her neighbour, her psychologist (PW9), a police sergeant, a decorator of the flat and a doctor on simulation tests. However, for the purposes of this appeal, it is only necessary to consider the evidence of PW2 and PW9.

18.  PW2 testified that she came to know the deceased in 1996 or 1997, after which they became close friends and stayed in regular contact with each other.  PW2 had, however, seen the applicant a few times only although she described him as a cultured gentleman who treated the deceased very well.  PW2 said that on 29 or 30 September 2011 she had a dispute with her daughter and so she left home and stayed at the flat of the deceased for a few days.  Two parts of her evidence are of particular importance.

19.  The first important part of her testimony is her evidence that on 2 October 2011, when she and the deceased were alone together in the flat, the applicant came and visited the deceased.  She said she left when the applicant arrived but she testified that the deceased had told her the purpose of the visit.  Her evidence was as follows:

“A. Well, because Chun Ka-yee told me the purpose of his visit was to negotiate or to have a dispute with her and that’s why she told me to excuse myself.

Q. Now, did she tell you what the negotiation would be about?

A. She told me that the defendant had paid her money and he wanted to break up with her, but Ms Chun didn’t want that and perhaps it was about that they would be negotiating.

Q. Did she mention about the amount of money that he pay to her?

A. Yes.

Q. And what did she say?

A. She was to be paid by two times; the first time $700,000 and the second time 1.1 million.

Q. 1.1?

A. Thank you. 1.2 million.

Q. Hong Kong dollars?

A. I didn’t ask her.

Q. Yes. And did she say whether she had actually received those two amounts or not?

A. Yes, she did receive the two amount of money.”[3]

20.  She said that the deceased was expecting to have an argument with the applicant but this did not eventuate.  Before PW2 returned to the flat she spoke to the deceased by phone and PW2 testified as to what was said in this conversation:

“A. Then Chun rang me up and told me to come home and I asked her, ‘Didn’t you guys fight? Have a dispute, have a fight?’” She said, ‘No, we didn’t, and it seems that he has changed into a new person and he treated me very well.’”[4]

21.  The deceased also told PW2 that she did not want to break up with the applicant, as she had really fallen in love with him.

22.  The second important part of her testimony was adduced by PW2 when being cross-examined about the temperament of the deceased. PW2 said that:

“Well, when she was very nice she really treated you very nicely. But when things turned nasty and unwell, she would pull a poker face even to all her relatives and all her acquaintances.”[5]

23.  PW2 said that whilst she was staying in the flat she tried to comfort the deceased and advised her to let go of the relationship.  She described the deceased’s reaction to her suggestion as follows:

“…but she[the deceased] said something like, because he was there to make my life difficult, I had to make his life difficult as well and I would make sure that he had lost his job and he would appear on the headline of a newspaper.”[6]

24.  Counsel for the prosecution, Ms Anna Lai SC, pursued this topic in her re-examination of PW2.  She asked PW2 if she had asked the deceased how she would make the applicant’s life difficult.  PW2 said she had and that the deceased had replied:

“A. Well, yes, because in the past the defendant had given her some inside stock information and so she was able to make some money and she would pursue that after him alleging that he had leaked insider information.

Q. Was that what she said?

A. Because the two of them each had in the possession in the mobile phones their photos depicting the two of them together and she told me because she knew someone working in newspaper and she would supply those pictures to be published.

Q. Is that about all she said?

…

A. Well, because I admonished her that, “In the past he had been treating you so well and you better not destroy his family and even if he wanted to break up with you, you better treat him as a friend thereafter.”[7]

25.  PW9 is a psychologist who first saw the deceased on 4 October 2011.  At the end of her interview with her, PW9 found that the deceased was suffering from severe depression and recommended her to see a psychiatrist.    

26.  In examination-in-chief, PW9 testified that the deceased had mentioned in the interview that she wanted revenge.  She said:

“A. … And Ms Chun also mentioned some dispute happening over the phone between Ms Chun and the wife.

Q. Did she mention when did that occur?

A. No.

Q. All right. Please carry on.

A. One point which caused her the greatest unhappiness was because the wife of boyfriend had sent her SMS claiming that she was a free of charge whore or prostitute. And this made Ms Chun very upset. And she told me that over the past two months she lost weight of up to 20-something catties and she was also trying to inflict harm to her own. And she even thought about committing suicide and to make things worse, the flat that she was living in decreased in value. And all added up to her sleepless nights. So she found herself too candid, plus the fact that the boyfriend’s attitude has changed, coupled with the SMS messages conveyed to her by the wife. The statements made therein caused her much pain. She wanted to revenge. She wanted very much to revenge. …”[8]

27.  In Mr Chui’s cross-examination, PW9 gave further evidence on this matter, saying:

“At that time she didn’t tell me any concrete plan of revenge. Well, to my understanding of her sharing, there wasn’t a hint of anything concerning violence or revenge in the form of violence. Well, all I felt was that she was very iodinated because of how she was going to live on in her future life and to have lost such an infatuated kind of love that she once enjoyed so much.”[9]

28.  The cross-examination also explored the possibility that with the deceased being emotionally unstable, she could lose her temper or self-control and lash out violently towards the applicant.  PW9 could neither confirm nor deny this possibility.  The exchange with Mr Chui was as follows:

“Q. This is exactly what I’m trying to suggest to you. Having read the transcript of the telephone conversation, that would be in a force of your professional assessment as a psychologist about Madam Chun condition, that she was having emotional problem, if not mental problem, when you saw her on 4 October; am I right?

A. She had emotional fluctuations and emotional problems.

Q. To the extent that there was opportunity or possibility she could have lost her self-control when she was not emotionally stable; am I right?

A. Then I’ve got to first hear from you your definition of losing one’s control.

Q. Losing temper, say for example.

A. Because the definition spectrum can be so wide in defining losing one’s temper and please let me know to what extent you’re talking about.

Q. One possibility was if Madam Chun was emotionally unstable and losing control she might with the anger start to the others, the ones she hated so much, hit, physically hit, hitting.

A. I can’t make such a speculation. Well, all I had met her was just a 50-minute session for the very first time. During most of the time she was giving me her narration of her story and coupled with the inventory assessment, I came up with that index by means of my professional expertise. Well, I really couldn’t retrospectively rebut what was referred to me just now and say that she had a tendency to inflict harm on other people.”[10]

29.  At 2:53 pm on 27 September 2011 the applicant made a telephone call on his office phone to the deceased. This call was recorded and the transcript adduced into evidence.  In this call the deceased tried to explain to the applicant the emotional turmoil she was enduring from their relationship.  She said:

“The deceased: It’s already a long time – It’s already a long time and it’s still like that. [The applicant: Mm.] That is, no matter what I said to you, whether you did it or not, there’s a lump of thing in my heart after all. (I) don’t know what it is. [The applicant: Mm.] (It) can’t go out. Well, can’t get out and can’t get out and that tortures myself like that. In fact, I don’t know what I am doing.

The applicant: Mm.

The deceased: I am somewhat of a loony and crazy as such. Sometimes, I would be thinking to such an extent as to want to kill you. Sometimes, just thought of stirring you up, stirring you up to this, this and this (extent). Sometimes, (I) though what’s the point of stirring all these things. My emotion was very unstable, in confusion.”[11]

The defence case

30.  The applicant testified but did not call any other witness.  He admitted killing the deceased but advanced a defence of self-defence.  Alternatively, it was put that even if it was found that what he did was not lawful self-defence then his killing of the deceased amounted to only unlawful act manslaughter because, at the time of the killing, he lacked the mens rea for murder.

31.  He testified that he was born in 1973 and the deceased was 5 years younger than him.  He received tertiary education in the US and worked there as an accountant until he returned to Hong Kong in 1999.  At the time of the offence, he was a director in an international holding company and had also set up his own company.

32.  He said he first met the deceased in a nightclub in 2006 and they became boyfriend and girlfriend in mid-2008.  As he got to know her better he described his feelings for her as follows:

“Well, having heard her story, I found that quite miserable. The more I heard about her story, the more I found myself drawn to love her and to protect her.”[12]

33.  In order to provide the deceased with a better living environment he assisted her in the purchase in April 2009 of the Amoy Gardens flat.  He made a substantial financial contribution to the flat in the form of a down payment of $150,000, decoration expenses, acquisition of furniture and all the monthly mortgage repayments of $5,000.  In addition, he financially supported the deceased by employing her to work in his company, paying her a monthly salary of $15,000 but after mid-2009 he ceased doing this and, instead, he paid her pocket money of $8,000 to $9,000 per month.  He also took out an insurance policy in the sum of US$52,000 of which she was the sole beneficiary.  The applicant was asked why he took out this policy and he explained as follows:

“A. Well, because I was with her and I would very much like her to know that I was truly fond of her and I would like to give her some means of assurance.”[13]

34.  The applicant said that, in March 2011, his relationship with the deceased was eventually discovered by his wife and this caused the applicant to want to end it.  When he told the deceased about his intention, she became emotional and asked the applicant to continue seeing her even if it was less often.  Thereafter, the applicant only saw her once or twice a week, mostly at lunchtimes, and ceased sexual intimacy with her.

35.  In May 2011, the applicantpaid over $50,000 into the deceased’s mortgage repayment account to assist her in repaying the mortgage.  He did not want to ask her for the return of the flat and gave it to her as a token of his feelings for her.

36.  Between March and July 2011, the applicant’s wife twice attempted to commit suicide.  Between 7 and 11 July, his wife also exchanged messages with the deceased.  These messages were acrimonious and reflected the distress that both women were feeling.

37.  The applicant said that after he had told the deceased in March that he was breaking up with her, she started to consume alcohol during the daytime and would get drunk at night in order to sleep.  She also became emotional and at times “she would become so irritable that she would have a hot argument with me and scolded me fiercely.”[14] There was also an occasion when she suddenly broke down and cried.  She then opened the window and climbed up onto it and the applicant thought she might kill herself.  He described their relationship after this incident as follows:

“Well, ever since she attempted to jump out of the window and by the end of September I avoided her. She didn’t reacted like she reacted before but she scolded me, she hit me. I would stop her. That was more or less how she was then. I found her having a problem emotionally in September. I suggested her seeing a counsellor but I simply didn’t realise that her situation would be that bad that she was required to see a psychiatrist.”[15]

38.  The applicant then testified to the occasion on 2 or 3 October 2011 when he went to deceased’s flat.  PW2 was there but she left as soon as he arrived.  He said he went to the flat because he wanted to take food for the deceased to eat and to remind her to attend her psychologist counselling appointment.  Having done these things, and cleaned up the flat, he left and returned to work.

39.  The applicant denied giving or promising to give the deceased two substantial sums of money totaling some $1.9 million that the deceased had claimed in her conversation with PW2.  He also denied assisting her in any of her stock trading.

40.  On 4 or 5 October, he had a conversation with his wife in which he revealed the history of his relationship with the deceased.  His wife told him she would forgive him but said he should stop seeing or contacting the deceased anymore.  The applicant agreed.  Accordingly, on 6 October, at 7 pm, he went to the flat in order to tell the deceased they should break up and to encourage her to attend her psychological counselling sessions.  He explained the predicament he was in as follows:

“Because my wife had emotional issues. I also promised her that I would never see KK again. But at the same time, well, I had to conceal from my wife the fact that I visited KK and took care of her and saw her. But KK’s issue was more serious than what I had anticipated and emotionally she continued to rely so heavily upon me, and when I saw her face to face or talked to her on the phone, I had to be very discreet in order not to cause her any excitement. Well, I found myself really got locked into that kind of situation. But for the sake of my family I could not go on treating KK so well, I must make a choice, so I would like to make it clear to KK the sooner the better. And that was why on 6 October, after I had the time off or day off, I wanted to explain to her the matter, the sooner the better.”[16]

41.  When he arrived at the deceased’s flat he helped her complete her tax return and spoke to her about her psychological counselling.  She was seated on the sofa eating a bowl of noodles and drinking wine.  He told her he wanted to talk to her about something and spoke to her about breaking up, telling her that he would not see her again.  The deceased was dumbfounded and cried and asked the applicant not to stop seeing her, but he replied:

“No, I can’t. I simply have to draw a clear dividing line from you and me for the sake of my family.”[17]

42.  He described how the deceased then changed into a different person:

“A. Then suddenly it seems that she had transformed into another person, very ferocious.

COURT: Pause there. Yes?

A. She loudly scolded me and my former wife. On seeing that, I thought of leaving. I wanted to grab my jacket and then left. The moment I stood up, she stood up too. She walked to where the window was, opened the window frame and climbed on it.

COURT: Pause there. Yes.

A. When I was about to approach there to grab her down, as soon as I touched her, she immediately came down on her own. I didn’t pull her down.

COURT: Pause there. Yes.

A. Then I aggressively talked to her, ‘Don’t you try to threaten me in this manner for me to stay behind.’

COURT: Pause there. Yes.

A. ‘I would not believe in you again.’

Q. Yes.

A. ‘From now on, in future, we will lead our own lives’ and all of a sudden she hit me. She slapped...

COURT: Pause there, pause there. ‘用手打我.’

INTERPRETER: ‘用手打’,‘hit me with his(her?) hand’.

COURT: Thank you.

INTERPRETER: Thank you, my Lady.

A. And she slapped me twice.

Q. Where did she hit you twice?

A. On my face.

Q. Yes, what happened next?

A. When she was about to continue to hit me, I grabbed hold of both her hands.

COURT: Pause there, please.

A. She wriggled her -- she kept wriggling her hands trying to hit me again and at the same time she kicked me with her foot or feet. I felt that both of my thighs near my lower private part had been hit by her.

COURT: Pause there.

A. Well, we pulled and dragged one another in this manner. I told her to stop hitting me. We were up to the middle part of the dining area and the living room. During our pulling and dragging on one another, both of us lost our balance and fell on the floor.

COURT: Pause there. Yes.

A. Well, fell on -- fallen on the floor, we continued to struggle and I held onto her hands. She continued to kick me with her foot or feet as she wriggled her hands.

COURT: Pause there. Yes?

A. Then I weighed down on her body.

Q. Yes. Both of you were on the ground, according to your evidence.

A. That’s correct.

Q. Yes, go on.

A. He(She?), well, kicked or used his(her?) leg -- she used her leg or feet or foot to attack me at my leg, thighs and near the lower part of my body.

…

A. To prevent her kicking or attacking my body in that manner, so I turned round to lie on one side.

COURT: Pause there.

A. Well, I was still on top of her. Then I lie sideway and my face was facing down on the floor.

COURT: Pause there. ‘And my face was...’

INTERPRETER: ‘Facing down towards the floor.’

COURT: Yes.

A. She struggled all the more fiercely and very difficult -- with great difficulty -- and with much difficulty I managed to grab hold of her hands crossed in this manner on her own chest.

...

A. Well, I managed to have her hands crossed like that, placed on her chest, but I’m not sure whether it’s up to this level or higher.

COURT: Pause there.

Just now when the accused did the demonstration, the first position was -- when he said, “I was not sure if it was up to this level”, that was around the chest level or higher, it was towards the throat.

MS LAI: Yes.

COURT: That is agreed, Miss Lai.

MS LAI: Yes.

COURT: And, members of the jury, you could see the demonstration.

Yes, please carry on.

Q. Both of you were then moving, right? Both of your hands, you yourself and the KK, right, as described the motion?

A. Well, ever since the moment I grabbed hold of her hands, for every moment that followed afterwards she was moving her hands. It’s not like what we’re doing now, that we pause at a certain interval, it all happened continuously and quickly.

Q. Yes, go on.

A. I remember when her hands were placed near to her chest or throat like this, I used one of my arm to press onto the middle part.

COURT: Pause there first. Pause there first. ‘I remember when her hands were placed near her throat...’

INTERPRETER: ‘Her chest and throat’.

COURT: ‘Near her chest and throat, I used one of my arms...’

INTERPRETER: ‘To press in the middle part.’

A. Meaning that I used my arm to weigh down on her upper forearm or whether it’s the hand, I simply can’t tell which part of the limb it was. It’s roughly the position.

…

A. She struggled vigorously and I exerted greater force in order to weigh her down and to press on her. I said, ‘Stop hitting me and I’ll let go of my hands.’ I pressed hold of her in that manner for quite some time but when she exerted stronger force, I did the same.

COURT: Pause there first. ‘I pressed hold of her in that manner for some time; when...’

INTERPRETER: ‘When she exerted stronger force, I did the same to her.’

COURT: Yes.

A. Then I became conscious to the fact that she stopped struggling and moving. I said to her, ‘Look, stop beating me. I’ll let go of my hands.’ As soon as I got up on my feet, I turned around and ran into the toilet. I locked myself inside the washroom. I stayed in the washroom thinking that I would get out after a while that she had calmed herself down and I would talk to her.”[18]

43.  The applicant said things happened continuously and quickly, and that he could not recall all the details of what happened.  He was however sure that he did not cover the deceased’s mouth or nose, and that she did not yell for help, moan or breathe heavily.  He said that in his position at that time he was unable to see the deceased’s face but only her ear.

44.  Whilst inside the toilet he found some abrasions and redness on his feet but no bleeding.  He stayed inside the toilet for some time before knocking on the toilet door and asking the deceased to stop hitting him so he would come out to talk.  The deceased did not answer.  He opened the door and saw the deceased was lying at the same spot with her eyes half closed.  He found she was not breathing and her heartbeat did not respond to resuscitation.  He thought she was dead.  He considered calling the police, but eventually decided not to do so as he thought he would be arrested and would lose everything.

45.  The applicant then decided to dispose of the deceased’s body.  He said that he left the flat at about 20:34 hours to buy a vacuum storage bag, two pairs of heavy duty household gloves and four rolls of cling wrap.  He then returned to the flat at 20:56 hours.  As there were difficulties in placing the deceased’s body inside a nylon bag found inside the flat, the applicant thought he should do it the next day with the aid of a car to dispose of her body.  At 21:43 hours, whilst inside the flat, the applicant received a call from his wife and he told her that he had just finished dinner with his friend and needed to go back to his office. 

46.  The applicant admitted that he removed the SIM cards from the deceased’s two mobile phones as it dawned on him that it could arouse suspicion if somebody called her and no one answered.  In order to create a picture that the deceased had moved away from the flat, the applicant put her ring, watch, wallet, proof of identity and life insurance policy into her handbag and discarded them.  He also took away his own items and discarded the vacuum storage bag and some clothing items of the deceased at the back staircase before leaving the flat.  The applicant then went back to his office at 22:39 hours from where he called his wife so that she knew he was there by the display on her phone of his number. 

47.  On the next morning, 7 October 2011, the applicant returned to the flat and put the nylon bag with the deceased’s body into a bigger, chequered nylon bag which he got from home. At about 10:44 hours, he wheeled the chequered nylon bag with the deceased’s body on a trolley out of the flat to the carpark and put it into the boot of his car.  He then drove to several places before finally disposing of the body in a rubbish trolley outside a village near Sai Kung.  The deceased’s body has never been recovered.

48.  The applicant said in order to make it appear that the deceased had moved away from the flat and to cover up her death, he had, on 9 October 2011, asked a decoration worker to help empty the flat of all the furniture and the deceased’s belongings.  Between 10 and 11 October 2011, he used the deceased’s two SIM cards to send text messages to her psychologist, her friends and himself saying that she was well and had just gone to the Mainland for a rest.  Between late October and November 2011, the applicant lied to the deceased’s friends that she had perhaps only gone away for fun.  The applicant also lied to her friend that he had mislaid the keys to her flat after the flat had been emptied and that he himself had been looking for her too. When he became aware that her brother would be making a missing person report, the applicant asked the friend’s husband not to say anything about him or disclose his identity to the police.

49.  The applicant explained that he denied having killed the deceased in his first trial because he had no courage to face the consequences and he feared that it would cost him everything.  However, at the retrial this burden was no longer on him as he had lost his family and he wanted to take responsibility for killing her.

50.  In cross-examination, the applicant agreed that the deceased would sometimes behave like a spoiled child.

51.  When asked why he had to see the deceased in March 2011 to tell her he was breaking up with her, rather than telling her over the phone or texting her, the applicant said:

“A. She was not a casual acquaintance. She was truly someone I had much fondness. She was not someone I could end a relationship simply like that, by calling her or giving her a text message...

Q. All right. So at...

A. ..and left...”[19]

52.  It was also put to the applicant that in March 2011 he was “only half-heartedly wishing to have a break up with her”, to which he replied:

“A. Well, in my mind I was unwilling to part with her, but what I had done physically, I really had broken up with her. Had I not been so fond of her, I would not have been taking care of a person in that manner for that long.”[20]

53.  The applicant agreed that from March to October 2011 he was also feeling stressful because his wife had discovered his affair with the deceased.

54.  He was also asked about occasions when he and the deceased had arguments.  He identified two such occasions when there was no violent behaviour and two occasions when “she only moved her hands”[21].

55.  When he was asked about the events of 6 October 2011, he repeated his account as set out at [42] of this judgment but when pressed on details by Ms Lai he was unable to provide them.  Ms Lai cross-examined the applicant in an effort to break down his account into a slow motion replay of what happened.  But, frequently, the applicant could only respond with “I can’t remember” or “I’m not sure”.  He said at one stage:

“A. I am not sure how relevant positions at that point because I had already -- I had already forgotten many things and everything happened very quickly and very confusingly. There is no way for me to remember.”[22]

This was followed by:

“A. I told her that I won’t believe her again because she pretended to jump from height and then when she made a move with her hand, I was not sure. I am not sure whether she was scolding me or doing something. When she had made some movement when she was hitting me and I stopped her, it happened very quickly with much confusion. In fact, I couldn’t tell whether she was scolding me or what.”[23]

56.  When asked about his attempt to leave after the deceased started scolding him and his wife, he said:

“A. When I was about to go, I wanted to take my jacket.

Q. Yes, please continue. Were you able to take your jacket?

A. Well, vaguely, I recall it seems so or seemed not. It seemed that I had taken my jacket, but then I left it again because I wanted to go grab KK. The impression was truly vague. It’s not because I don’t want to tell you about that because things happened in so quick a period of time.

…

A. Because she swore at me and at my wife, so I was under the impression that she was scolding at me. I was frightened. I didn’t want to end up in a fight -- a verbal fight with her, so I didn’t know what to do. I just wanted to leave.”[24]

57.  The applicant was then asked about the deceased going to the window as though she might be intending to jump from it.  He said:

“A. Well, by the time I took a glance at her there, I saw that her feet or leg or foot or legs -- sorry -- one of her -- one of her feet was lifted up in the process of climbing.

…

A. Well, I walked up to her and I wanted to grab her down. Well, I didn’t know how I grabbed her down. Actually, when I touched her, before I exerted any force, she, on her own, got down. All because of that, again, I thought, using the same scare tactic again to threaten me to stay.

…

A. She got down and she was by the windows.

Q. Was she facing you?

A. Well, it should be she was facing me because then I was able to snap back at her.

Q. So, both of you were standing by the side of the window then?

A. I am not sure whether she had climbed down and then she walked in front of me or whether I was still by the window, I didn’t -- I don’t remember. Well, because when I snapped back at her, I was doing that face to face to her and my tone was quite heavy towards her.”[25]

58.  Later, Ms Lai continued to ask about this point in time:

“Q. All right. And then what happened next?

A. What is next?

Q. After you spoke to her aggressively.

A. I told her again that I would not be leaving her anymore. But roughly words to the effect that we would lead our own lives separately. ‘If my wife contacted you, just don’t respond. Don’t. Just -- just ignore her.’

Q. After you finished the conversation or after you had spoken those words, what happened?

A. She was very angry and she slapped me on my face twice.”[26]

59.  The actual course of events during which the deceased must have suffered the harm from which she died, was explained by the applicant as follows:

“A. When she was about to make a move with her hands to hit me again, I grabbed hold of both of her hands.

Q. How many hand or hands did she use to slap you?

A. I think one hand.

Q. The right hand?

A. I remember, it should be her right hand.

Q. Yes, and you grabbed hold of one hand or two hands of hers?

A. Almost simultaneously, I grabbed hold of both her hands.

Q. At that time, did you say anything?

A. No, well, it happened in a split second, very quickly.

Q. How about her, did she say anything or make any noise?

A. I was not aware of that.

Q. Was she scolding loudly or...

A. I was not aware of that kind of things.

Q. And then what happened?

A. Then she flung her hands about or wriggled her hands about and we pulled and dragged one another and at the same time I felt that she had kicked me on my -- on my thigh near to my lower part, but I didn’t see how she kicked me.

COURT: Pause there, first. Ms Lai, do we need him to repeat his evidence?

MS LAI: I would like to go into the details, my Lady.

COURT: I see, all right.

MS LAI: Yes, all right.

Q. Now, did she kick on your thigh or thighs?

A. Well, I felt pain on both thighs, but I am not sure whether she just kicked me on one side or not because the whole action was very quick. It’s not like slow motion, bit by bit.

Q. And at that time, you were still grabbing hold of her hands?

A. The whole movement was I was still grabbing hold of her hands and I felt that, well, we were pulling and dragging onto one another and felt also hit.

…

Q. And then what happened?

A.     During our pulling and dragging onto one another, well, I was struggling, I told her, “Stop it, stop hitting.”

Q. And did she say anything?

A. I was not aware whether she said anything.

Q. At that time, was it all quiet except your own voice or not?

A. Well, in my impression, I’m not sure whether she was fussing with noises or what. Now, I recollect what happened then. Everything happened so quickly.

Q. Yes, and then what happened?

A. Well, we pulled and dragged onto one another. It seemed that we were in the dining room. Well, somewhere between the dining area and the living room.

Q. Yes, and the two of you fell onto the ground, is that right?

A. Yes.

…

Q. Now, you mentioned in your evidence-in-chief that after falling down, she continued to kick at your thighs and near to your lower part. Do you remember that part of the evidence, first?

…

A. Well, what I said was we grabbed hold of one another with our hands and she kept wriggling while we were still on the floor and she lifted a part of her lower limb and that landed on my private parts. While we were on the floor, she wriggled limbs, upper and lower, and she also propped up or supported, I used the word propped up or supported, and she lifted.”[27]

60.  A constant refrain in his evidence was how there was just one continuous movement, all the details of which he could no longer remember.  For example, he said:

“A. I don’t remember the actions. All I can remember was, well, her lifting of her lifting limb and that landed on my private part, then I turned to one side, I mean, my trunk, the whole body.”[28]

“A. I want very much that you -- I want you to understand that is a continuation of movement. It’s not standing still, one movement after another. And one would be very confused and frightened and you are unable to think of anything. All you wanted to do is to protect yourself.”[29]

“A. I am not certain about each and every move. I only recall at the end because when I was top of her body, she was still able to move and her hands as demonstrated, crossed, were still able to move about. The more force she exerted, the more force I exerted also. I cannot decipher each and every small movements. In fact, I don’t know.

…

A. Well, I remember one side of my lower limbs, one side of my lower limbs had come into contact with her. But at that point of time, I would not be aware of how the contact was made. I was not aware of which part of my body was holding her down or weighing down on her body.”[30]

“A. When we were down there and I managed to press hold of her, I said to her, ‘Stop hitting, stop it.’ But I can’t tell when I told her so. Such movements happened in a continuum, very quickly. It could not be dismantled into each still movement, bit by bit.

Q. Did you say several times, asking her to stop hitting?

A. I don’t know because it was very confusing and I wanted to protect myself. I didn’t want to hit her or cause anything to her.”[31]

“A. I only remember when she became more forceful, all the more force I also exerted on her. I don’t know. All I can remember was I hoped she would no longer so hit me.

…

A. Because she was in the course of hitting me. Had I wanted to leave, I would have to hit her back in order to get away. In order to protect myself, all I could do was to grab hold of her hands. Everything happened in a split second. It’s not like we are doing now, seated and there was no way for me to move away to get out.”[32] (Emphasis added.)

Discussions with the judge

61.  On 22 November 2017, during the cross-examination of PW2 the judge raised with the parties the hearsay evidence that PW2 had given on the matters that the deceased had spoken to her about.  Ms Lai explained her basis for adducing this evidence.  She said:

“In respect of those repeated conversations, it’s actually with Miss Chun, I am aware of the hearsay problem. But I adduced those evidence mainly to show the state of mind of Miss Chun at the time but not to rely on the truthfulness of the contents.”[33]

62.  After the applicant had completed his evidence, the judge discussed with counsel the directions she should give the jury and the judge again raised the issue of the hearsay evidence of PW2 dealing with the deceased’s claim that the applicant had given her inside information to trade in shares.  The following exchange took place:

“This matter I would need counsel’s input, that is about Tong Man-lin saying to members of the jury that Chun had told her that the accused had given her some insider trading information. One way of dealing with it to just let it lie, not to mention it anymore. But the other way of dealing with it is to actually give them a legal direction that that was hearsay, purely hearsay, and no adverse inference whatsoever should be drawn against the accused in relation to what was said by Chun Ka-yee to Tong Man-lin. What’s your view, Mr Chui?

MR CHUI: I would prefer the latter.

COURT: The latter, that is, giving them the direction.

MR CHUI: Ignore the hearsay.

COURT: Ignore it completely because hearsay, all right. Ms Lai?

MS LAI: Well, this hearsay, if one is to rely on the truthfulness of the content but if it shows the state of mind of Madam Chun...

COURT: Of course.

MS LAI: ...yes, that she wanted to put some action, or she was thinking about some action of revenge and I think that is relevant.”[34] (Emphasis added.)

63.  The judge accepted this as a basis for admissibility although expressing some concern at its hearsay nature and this was reflected in the directions she ultimately gave the jury in her summing-up.

64.  On the same occasion the judge also expressed her concern that by his testimony the applicant had laid an evidential foundation for the defence of self-defence, a defence which Mr Chui had not hitherto indicated he would be relying on.  Mr Chui accepted that the judge should direct the jury on this defence, saying:

“MR CHUI: Well, my Lady, my humble view is that on evidence so far as it has developed now, the evidence of the defendant in court, I agree with your Ladyship’s observation there is evidence for the matter of self-defence to be raised although it has not been my case so far. We never raised self-defence as a defence in this trial.

COURT: Of course, at the time when...

MR CHUI: But of course as the evidence developed now I can only agree to the extent that such evidence did come out which did raise this defence of self-defence which, if your Ladyship is minded that self-defence should be left for the jury’s consideration, then I have no objection.”[35]

Clearly the judge was aware that the applicant’s evidence had had an impact on the scope of the defence case and having raised it with Mr Chui, he was now alerted to this. 

65.  Some 20 minutes later, after Mr Chui had closed his case, the judge discussed with counsel the directions she should give.  The following exchange took place between the judge and Mr Chui:

“COURT: Right, let’s start with the directions then. Mr Chui, any observations or views?

MR CHUI: My Lady, of course I would invite this court when your Ladyship addresses the jury in the summing-up first of all to tell them the legal directions on the offence of murder, manslaughter and for manslaughter, particularly for unlawful act manslaughter.

COURT: I think only unlawful act manslaughter is relevant.

MR CHUI: Yes.

COURT: We are not talking about any provocation or diminished responsibility, so it’s only unlawful act manslaughter.

MR CHUI: And I will also invite this court to address the jury about the offence of murder, the necessary intent to kill or to cause grievous bodily harm. Against that background could also inform the jury about the consideration of self-defence in that regard.”[36]

66.  Mr Chui raised no issue of directions being needed in respect of the partial defence of provocation.  The judge said she would give counsel an opportunity to further discuss her directions with her the following day. 

67.  The following day the judge and counsel again discussed the judge’s directions in her summing-up.  Significantly, Mr Chui was again silent on the need for the judge to give any directions on provocation.    

The prosecution’s closing address

68.  At the beginning of her closing address for the prosecution, Ms Lai emphasized the heavy reliance of the prosecution on circumstantial evidence to prove her case.  In this respect it is important to note that the bulk of that circumstantial evidence concerned the conduct of the applicant after he had killed the deceased.  Notwithstanding the evidence of post-killing conduct that went to concealment of the killing, the prosecution was not asserting that the murder of the deceased was premeditated.  Ms Lai informed the jury of the way the prosecution was putting its case by saying:

“Now, if I may pause here, members of the jury. This is not a case that the prosecution said that there was any premeditation. Not at all. Sometimes in some cases, there may be evidence there was pre-planning. No, definitely the prosecution says that there is no premeditation in this case. He did not have the intention to kill or to cause her really serious bodily harm before going up to the flat on that evening of 6 October. What we say is that at the moment when he was doing this action that caused her death, at that particular moment, he has this intention to kill or to cause her really serious bodily harm. So if I may just briefly refer that to the murderous intent. That is the intention to kill the person or the intention to make the person suffer very serious physical harm. I may just call it murderous intent.”[37]

69.  She told the jury that she would be asking the jury to find that murderous intent had been proven and to do so by a process of inferential reasoning.  She then continued:

“… You have to look at all the evidence. As you are well aware, we don’t have the evidence of Ms Chun. We do not know what actually -- we don’t have direct evidence of what actually happened. So we have to rely on the circumstantial evidence including the conduct of the accused after the killing. That is what I would call the post-offence conduct.

So this is the case that we will rely on your experience, your collective wisdom, your knowledge about human nature, to draw inference or conclusion about the intention of the accused at the time of the killing. And I make it clear that we are not saying that there was any premeditation. We are not saying that he intended to kill her before going up to the flat. We said that something happened whilst they were inside the flat and at the moment when he committed the act that caused her death, at that moment, he has the intention and if you are sure of that, then you can find this element proved. I will come to more details about this matter a little bit later.

… In this case, we say that on the post-offence conduct, that is the post-killing, after the killing conduct of the accused and the conduct capable of allowing you to draw one and only one reasonable inference or conclusion. That is, at the material time, that he had the intention to kill or to cause serious physical harm; the murderous intent.

We say that, in fact, at the time of the killing, he was aware that he has that intention and that after the killing, all the conduct of concealing the death, all the conduct of trying to evade his responsibility, those are conduct that you can take into account. Now, of course, the mere fact that after somebody’s death a person disposes of his or her body, the mere fact by itself you may think it doesn’t mean that the person must have the murderous intent at the time of the killing. But we say that in this particular case, it is not a case of mere disposal.

We say that this is a case that there was a very swift, well-organised, efficient disposal, not only of the body of Ms Chun, the corpse of Ms Chun, also of all her personal belongings, her items, her flat in Amoy Gardens, even the furniture, and that those were -- the way of disposal. That not only did the body disappear, all her personal items, all the furniture in the flat, they all disappeared within several days’ time. This is what I said about the swiftness or the efficiency or the well-organised disposal. This is not just to dispose of a dead body out of a panic. This is a very swift disposal of the body and related items, together with, we say that, all the multiple lies being told by the accused subsequently after the killing. We say that all those lies will support him having the murderous intent or at least will support the prosecution case that he definitely was not acting in self-defence. It was not a lawful killing.

Now, we say that with all those lies, together with the post-offence conduct, that you can be sure that he had the murderous intent at that time. Now, before we come to revise or have a quick revision of his post-killing conduct, if I may just briefly remind you about the multiple lies that he had told since after the killing. It is the prosecution’s submission to you, members of the jury, that the accused is somebody who has no hesitation at all to lie if it can suit his own purpose. In fact, you may think that he is quite a skilful liar, that he can make up so many lies within a short period of time. …”[38]

70.  Ms Lai then drove her point home by referring to the various lies the applicant had told after killing the deceased, concluding with his perjured testimony in the first trial.  This enabled Ms Lai to characterize the applicant as “a man that cannot stop lying … that is the kind of person he is.”[39]

71.  Ms Lai also made much of the failure of the applicant to make any attempt to resuscitate the applicant or summon assistance.  This led her into wondering what caused the applicant to become so angry that he would form a murderous intent.  She said:

“What made him so angry or what made him behave like that, we don’t know. But, of course, we know that in those few months, he himself also suffered from a lot of stress because of this disclosure or discovery of the relationship by the wife. He was somebody who stayed between two women, the wife, the mistress. He himself was undergoing a lot of pressure. He kept telling us that, ‘Well, I was concerned about Ms Chun. She was unhappy.’ Now, members of the jury, it’s funny. He never told us that he was unhappy. But, indeed, you can imagine that he must be suffering as well. Maybe he was also somebody who become very easily irritable at that stage, right?

Remember in one of the telephone calls with Ms Chun that he told her that, ‘Maybe I have to see the psychologist too, but it’s difficult to make arrangement in day time.’ It may be a joke, but that is an indication that he may consider himself that undergoing some kind of pressure that he may be suffering from depression as well. That is why on that very night for some reason when they have this fight, he inflicted a lot of force on her and that resulted in her death. That is our submission to you.”[40]

72.  She concluded her speech by explaining that the difference between murder and unlawful act manslaughter was that the former required proof of murderous intent whilst the latter did not.  She then said that in this particular case “there is overwhelming evidence from his post-killing conduct and from all those lies to show to you that he had murderous intent at the time.”[41]

The defence counsel’s closing speech

73.  Mr Chui echoed the point made by Ms Lai that this was not a premeditated killing.  He said to the jury:

“Now, my learned friend has quite rightly pointed out to you just now in her closing speech -- I am most grateful to my learned friend -- when she told you that in this case the prosecution is not saying the killing was one of an advanced planning. It’s not a premeditated one. And then, in fact, the prosecution case is that it all happened in the spur of the moment when KK and the defendant had some argument, that is an argument, and then developed into a fight. In the course of the fight, the defendant had used excessive force and at the same time with the intent to either kill KK or to cause her grievous bodily harm and, in fact, eventually his act caused the death of KK, and so he’s a murderer, he’s guilty of murder. This is the prosecution’s case. Not advanced planning.”[42]

74.  He then explored the question of whether there was any evidence of motive for the applicant to want to kill the deceased, saying:

“Where’s the evidence? There is no evidence before the 6^th day of October that KK and the defendant had any dispute. …

So, where is the motive for the killing.”

75.  Mr Chui continued to emphasise the lack of motive, repeatedly saying that there was no evidence to suggest that the applicant had to kill the deceased in order to rid himself of her.  In the course of so doing, he reminded the jury that the break-up of the relationship with the deceased was proceeding amicably and throughout it the applicant was showing care and concern for the deceased, even to the extent of arranging psychological counselling for her.  Drawing all these points together, he told the jury:

“… With all this state of mind of the defendant as it developed up to the 6th day of October, where was the evidence to suggest that the defendant needed to get rid of the deceased, to kill her so that he can continue with his good life, his good job, his good family, as suggested by my learned friend. There’s none and this is why it is plain in this case the prosecution could not have proceeded their case for killing, for murder, for it was advanced planning murder or premeditated. They could only at the most try to convince to you that had planned this on the spur of the moment when the deceased and the defendant were struggling, in the course of which you had the murderous intent.”[43]

76.  Mr Chui then spent some time discussing the backgrounds of the applicant and the deceased.  He portrayed the deceased as suffering from depression over the break-up of her relationship with the applicant and of being emotionally unstable and turning to alcohol to escape the sadness in her personal life.  Her mental state had to be considered in conjunction with her personality traits and in this regard Mr Chui relied on the evidence of the deceased’s brother (PW1), who said that when the deceased was drunk she became violent; her friend, Madam Tong (PW2) who said that when the deceased was not in a good mood she put on a poker face; PW2’s husband (PW3), who described the deceased as a hot-tempered person, a spicy girl; and a neighbour, Mr Chan (PW8), who observed an argument between the applicant and the deceased in which the applicant had been calm and the deceased angry.  Against the backdrop of these personality traits affecting the applicant as she sought to deal with her depression, the events of 6 October fell to be examined.  Mr Chui said:

“And, so, all in all, you can see for yourself about the state of mind of the deceased leading up to the 6th day of October when this incident happened. In that, firstly, her own character and/or personality, what kind of person she was, she was a person with hot temper, quick-tempered, easily to get agitated. This is the first thing. If on top of this second, if she was under the influence of alcohol, what sort of person she would become. A woman who would resort to violence, isn’t it, on evidence so far adduced to you.

…

And, thirdly, you will recall the evidence of the brother. If something excited her, 刺激到佢, she would get excited, agitated, irritated easily. So applying that to the present case, if you believe the evidence of the defendant that after he had gone to the flat on the evening of 6 October with this purpose, main purpose was that he went there for the main purpose of informing, telling the deceased, ‘We really must end our relationship once and for all.’”[44]

77.  Mr Chui sought to persuade the jury that the impact of the applicant’s statements on the deceased, telling her that they had to break-up, would have been to cause her to become excitable and angry.  He described the deceased’s reaction to what the applicant was saying in this way:

“And thereupon, according to the defendant’s evidence before you, the deceased became another person, something like another person, very excited, emotionally excited, and then start scolding the defendant and his wife.”[45]

78.  Mr Chui then set out the applicant’s evidence of how the conversation descended into argument and from there into violence.  He then summed up the prosecution and defence cases on the applicant’s intent, or lack of it, as follows:

“Now, the prosecution case is that, as my learned friend has invited you to consider, it was in the course of the fight, so called fight between the deceased and the defendant, that the defendant had used excessive force onto the deceased and at the same time whilst using excessive force at that moment the defendant had the murderous intent either to kill the deceased or to cause her grievous bodily harm. That is the case of the prosecution here. It was in the course of the fight that the defendant had used excessive force and whilst he was using that force, he had that intent, murderous intent out of the blue, out of the moment, out of the situation. He then decided to kill her or to cause her grievous bodily harm. Are you sure he has such intent as described and as suggested by my learned friend?

May I ask why was there a need for the defendant to kill her at that time? What was there a need to cause her serious bodily harm? What good does it make to the defendant? What problems could be solved if he had done that with that murderous intent? Can you find any good need? That if he had done that, everything would be solved once and for all. As my learned friend has suggested to you this morning, he had to do this so as to get rid of the deceased one and for all and continue his good life, good job, good family, good reputation, good income, good career, isn’t it? And that is for that reason my learned friend has invited you the defendant must have that murderous intent so as to get rid of KK once and for all to serve his own purpose. Can you believe that was the case? I say you cannot, but this is the case for the prosecution here.

No premeditation for killing, no advance planning for killing and it was only after an argument which developed into a fight and only in the course of the fight, the prosecution says the defendant then, there and then at that moment, in the spur of the moment during the fight, the struggle, had that murderous intent if not to kill her, at the least to cause her grievous bodily harm and the purpose is to get rid of her once and for all for his own purpose, continue his good life. This is exactly what the prosecution would like you to believe and to accept and to convict him for murder on this reason.

…

So, as I said to you before the lunch adjournment, if the prosecution case is really confined to so narrow, that murderous intent, when was it arose or recently, then you have to consider the evidence very carefully, bearing in mind the circumstances of the case and the background of the whole case to see through whether you are satisfied beyond all reasonable doubt so that you are sure that in the course of that struggle on the ground, the defendant must have intended to kill her as suggested, or must have intended to cause her grievous bodily harm as suggested. If you are not sure, then you must, members of the jury, find the defendant not guilty of murder.”[46]

The grounds of appeal

79.  In her Amended Perfected Grounds of Appeal against Conviction dated 28 May 2020, Ms Charlotte Draycott SC, counsel for the applicant, advances three grounds of appeal.  The first ground of appeal is that the judge “failed to direct the jury to ignore hearsay evidence that appeared to show that the deceased wanted revenge upon the applicant and/or his wife, had the means to blackmail him and might already have succeeded in doing so.” 

80.  In support of the first ground of appeal, Ms Draycott submitted that as the prosecution presented its case on the basis that:

(i)     this was not a premeditated killing; and

(ii)     the applicant had formed a murderous intent in the heat of an argument,

evidence suggesting that the applicant had provided the deceased with insider information and that she was successfully blackmailing him was irrelevant to any issue the jury had to decide.  Such evidence provided a motive for murder but because the prosecution did not present its case as a motivated murder, the evidence had no probative value and was of considerable prejudicial effect.

81.  Ms Draycott also argues that the judge’s directions left it unclear to the jury why they had heard this evidence and how they should use it in their deliberations.  She says that the judge ought to have directed the jury to completely ignore the hearsay evidence.

82.  The second ground of appeal complains that the judge failed to direct the jury on the alternative verdict of manslaughter on the basis of provocation.

83.  In respect of the second ground of appeal, Ms Draycott submits that the question of what had driven the applicant, a mild-mannered person, who had hitherto treated the deceased well, to kill the deceased was central to the case and the jury were bound to wonder what had happened between them that resulted in her death.  The personality of the deceased and the evidence of the applicant that he was attacked by the deceased, allowed of an inference that the applicant lost his self-control and formed an intention to cause the deceased really serious harm, which led to her death.  As provocation was available on the evidence, it was incumbent upon the judge to direct the jury on it.     

84.  The third ground of appeal complains that the prosecutor was wrong to suggest to the jury that they could infer from the applicant’s post-killing conduct that he had a murderous intent when he killed the deceased, rather than an intention consistent with manslaughter or self-defence.

85.  In support of the third ground of appeal Ms Draycott argued that the post-killing conduct gave rise to a number of reasonable inferences and the judge should not have directed the jury that they were entitled to conclude that the only reasonable inference was that the applicant had formed an intention to kill.

The respondent’s submissions

86.  Mr William Tam, SC, with him Mr Raymond Cheng, for the respondent, submitted that the judge had given the jury sufficient directions on the limited or impermissible use of the hearsay evidence.  Mr Tam submitted that there was no admissible evidence to confirm PW2’s assertion that the applicant had paid $1.9 million to the deceased, or she had received the payment from him, let alone the motive underlying such payment.  It would be speculating for the applicant to now suggest that the jury might be given a false impression that the applicant actually paid the deceased because he was blackmailed to do so, and as a result of that he killed her to take revenge.  

87.  Mr Tam also submitted that it was unclear what the deceased meant when she spoke of revenge and there was no basis for concluding that she was intending to blackmail the applicant.  Even assuming the deceased was contemplating revenge, there was no evidence to show that the applicant knew of her intention or perceived any personal threat, which was serious enough to constitute an intention to kill the deceased.

88.  Mr Tam further submitted that the hearsay evidence, including that the deceased would make the applicant’s life difficult and inform other people of his unauthorised disclosure of insider information, was only relevant in showing the deceased’s state of mind regarding taking revenge on the applicant and, in this respect, was actually beneficial to the defence case.[47]

89.  In respect of the second ground of appeal, Mr Tam argued that there was insufficient evidence of provocation, especially in regard to proof of the element that the applicant lost his self-control.  The proof of this element rose no higher than a speculative possibility.  He submitted that in assessing the sufficiency of the evidence regard should be had to how the defence conducted its case and on this point he prayed in aid the comments of Ma CJ in HKSAR v Chau Yui Ming.[48]

90.  In respect of the third ground of appeal, Mr Tam referred to a number of overseas authorities in support of his proposition that post-killing conduct is admissible for the purpose of drawing an inference as to an accused’s state of mind.

Discussion

91.  The first and second grounds of appeal are connected in the sense that if the first ground fails and the evidence that it asserts was inadmissible was properly placed before the jury then, arguably, it strengthens the need for the jury to be directed on the alternative partial defence of provocation.

92.  The first ground of appeal essentially complains that the impugned evidence was not indicative of the deceased’s state of mind or, alternatively, if it was, the jury were not given adequate directions on it in terms of how it was relevant to this issue and what use they would make of it.

93.  In respect of this hearsay issue, having raised that issue with counsel in the absence of the jury, the judge warned the jury in these terms:

“I should tell you as a matter of law that what a witness tells you about what he or she had heard from another person as to what happened is not evidence. That conversation is not evidence. That is not evidence that the event actually took place in that way.

…

So although Tong Man-lin [i.e. PW2] said Chun [i.e. the deceased] had told her about the receipt of the two payments from the accused, that conversation is not evidence that the payments were indeed made because Tong Man-lin could not tell you if such assertions were true or not. All that Tong Man-lin could tell you was that such was what was said to her by Chun at the time and the relevance of that conversation is merely to show Chun’s state of mind at that time. That is, Chun did not want to break up with the accused, although, according to Chun the accused had given her some money - only relevant to show Chun’s state of mind at the time. Hence, as to whether or not there were such payments, you cannot rely on Tong Man-lin’s evidence to assume that there were.

You would recall that when the accused gave evidence himself, he told you that he did not give those payments to Chun. Whether you accept his evidence or not is, of course, a matter for you but even if you do not accept the accused’s evidence on that matter, there is no evidence before you that there were such payments made. As I have told you, what Tong Man-lin said in the witness-box about that conversation is not evidence on the matter about whether payments were actually made. So do not speculate.” [49]

94.  In respect of the purported leakage of insider information, having discussed with counsel in the absence of the jury, the judge told the jury that:

“Tong Man-lin further told you that Chun had mentioned about the accused being there to make her life difficult so she would make his life difficult as well, and would make him appear in headlines and lose his job.

Members of the jury in this connection you have heard Tong Man-lin saying that Chun had mentioned about disclosing to the press that the accused had provided insider information to her. But, as I have already directed you, what Chun told Tong Man-lin is not evidence that such indeed happened, not so. So do not speculate and do not have any prejudice against the accused and do not draw any adverse inference against him in respect of this part of the conversation mentioned by Tong Man-lin.”[50]

95.  We do not agree with Ms Draycott that this evidence was not relevant.  It did have relevance and its relevance was as to the deceased’s state of mind and so the judge’s directions, so far as they went were correct.  However, they did not, regrettably, explain how this evidence would be relevant in terms of what the jury could find it revealed about the deceased’s state of mind.  What the evidence showed was that the deceased might have been thinking of demanding money from the applicant and perhaps even threatening him with allegations of improper financial conduct in order to force him to submit to her demands.  In the context we have set out, it could suggest that the deceased was in an aggressive and vindictive state of mind and, if she took forward this plan in such a state of mind, it might explain why a person with the applicant’s character and personality might form a murderous intent.  In our judgment, it was some evidence from which an inference could be drawn that the deceased had engaged in provoking conduct.

96.  This was, in effect, how Mr Tam put it in this appeal.  He did not argue that there was no evidence of provoking conduct but, instead, the focus of his submissions was that there was no evidence from the applicant of loss of self-control.  In the Respondent’s Skeleton Submissions dated 18 July 2019 Mr Tam wrote:

“CHUN’s state of mind (i.e. being agitated and ready to take revenge) at the time was plainly a matter that was relevant to the factual question of whether she was the aggressor who was first to assault the Applicant during the fatal incident, as claimed by the Applicant in his evidence. Like the evidence of the prior incident involving an act of violence by CHUN, such evidence of CHUN’s state of mind could indeed support the Applicant’s case.”[51]

97.  Had the judge pursued this train of thought, she would, inevitably, have found herself compelled to address the question of whether she should direct the jury on the partial defence of provocation.

98.  We accept that there was a failure by the judge to fully explain the relevance of this evidence in terms of what it revealed to the jury about the applicant’s state of mind.  If it was only adduced by the prosecution to prove the deceased did not want to break up with the applicant, there was ample evidence from PW2 to prove this, and there would have been no need for the prosecution to have recourse to this problematic material.  The judge did not say anything at all about the relevance of the alleged insider trading to the deceased’s state of mind.  That relevance, as expressed by Ms Lai in an exchange with the judge, is that the deceased “was thinking about some action of revenge”.[52] 

99.  As important as this failure of the judge to direct on the relevance of this hearsay evidence was, its true importance lies in its link to the second ground of appeal in that it constitutes some evidence of provoking conduct.  We should make it clear that it is not evidence that the deceased had committed acts of provocation, but merely that, at the time she met her death, she might have been inclined to do so and may have been contemplating a plan to take revenge against the applicant by alleging he was involved in insider trading or extorting monies from him.

100.  This brings us to the second ground of appeal.     

101.  The fact that an accused’s counsel is not relying on a particular defence which would give rise to an alternative verdict, does not prevent counsel from asking the trial judge to leave this alternative verdict to the jury.  It is perfectly proper for counsel to say that an alternative verdict which is not part of his case, arises from the evidence and, because it is contrary to his case, he cannot invite the jury to return a verdict on it; but because there is some evidence in respect of it, the judge is nevertheless required to place it before the jury for their consideration with appropriate directions.

102.  This question was fully discussed by the Court of Appeal in HKSAR v Coady (No 2)[53]where Keith JA, noting that the English authorities had not been previously discussed in Hong Kong, took the opportunity to say that the court agreed with the comments contained in a line of cases starting with R v Cox[54] and continuing through R v Cambridge[55], Bullard v R[56], R v Dhillon[57] before reaching Von Starck v R[58].  Von Starck has been consistently followed by the Court of Final Appeal.  We take this opportunity to remind counsel of the observations of Glidewell LJ in Cox which Keith JA specifically approved.  At page 518D-E Glidewell LJ said:

… if it appears to counsel, whether for the Crown or the defendant, that there is evidence on which the jury could find provocation, they should regard it as their duty to point it out to the judge, before the judge sums-up, and should invite him to consider whether he agrees that the evidence would justify a finding of provocation, and if so, remind him that he in those circumstances is required by the statute to leave the remaining issues to the jury.”

103.  The circumstances when such a direction is necessary were addressed by Ma CJ in HKSAR v Chau Yui Ming[59].  In his judgment in this case, Ma CJ explained that for such a situation to arise there must be evidence before the jury to justify the judge adopting this course.  He said:

“31. In my view, some care needs to be exercised when defining the obligation to direct alternative verdicts. It is unhelpful, not to say confusing, for a Judge to have to direct a jury to alternative options based on vague expressions such as ‘possible alternatives’, ‘possible scenarios’, ‘alternative defence scenarios’ or ‘secondary defence scenarios’. This was the type of expression used by McWalters JA in the passages set out above.Apart from being imprecise and uncertain, it can give rise to considerable practical difficulties in application because it can lead to a real potential for confusion on the part of the jury. Where, for instance, the defence's evidence and approach to the evidence is contrary to such alternative or possible or secondary factual scenarios, it would be confusing and wrong for a judge to have to direct a jury on those alternative factual scenarios. Were it otherwise, this would invite ingenious attempts to identify alternative scenarios, particularly after trial, in order to impugn a summing-up, these allegations bearing little or no resemblance to what was the reality at trial. …

32. The answer to the question in what circumstances it would be incumbent on a Judge to direct a jury as to the alternative options open to it is, I believe, to ask further whether there is an obvious alternative verdict which is supported by the evidence of that alternative. …

…

34. What is the position when the alternative scenario relied on is contrary to the way the defence has conducted or presented its case on the facts? In the passage from Ho Hoi Shing v HKSAR quoted above,Chan PJ referred to a Judge not being absolved of the duty to direct on an alternative verdict ‘even if a particular alternative is not raised by the parties or is inconsistent with the defence run by counsel for the accused’. However, it is relevant to read the extract from the judgment of Lord Clyde in Alexander Von Starck v R which follows immediately after. This passage refers to conclusions open to the jury ‘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’. (Emphasis added.)

35. The way that the defence case is run on the facts is obviously relevant in determining whether there is sufficient evidence in support of an obvious alternative verdict. If a factual alternative does not arise in the way the defence has dealt with the facts and presented the case on the evidence (as opposed to the legal approach) this will in most cases be decisive. …”[60]

104.  Ma CJ then referred to a decision of the English Court of Appeal in R v Fairbanks, where Mustill LJ in giving the judgment of the court said:

“… the judge is not always obliged to leave all the alternative verdicts theoretically comprised in the charge of the offence, but need not (and indeed should not) do so unless the alternatives really arise on the issues as presented at the trial.

These cases bear out the conclusion, which we should in any event have reached, that the judge is obliged to leave the lesser alternative only if this is necessary in the interests of justice. Such interests will never be served in a situation where the lesser verdict simply does not arise on the way in which the case had been presented to the court: for example if the defence has never sought to deny that the full offence charged has been committed, but challenges that it was committed by the defendant. Again there may be instances where there was at one stage a question which would, if pursued, have left open the possibility of a lesser verdict, but which, in the light of the way the trial has developed, has simply ceased to be a live issue. In these and other situations it would only be harmful to confuse the jury by advising them of the possibility of a verdict which could make no sense.”[61]

Of this passage, Ma CJ said:

“36. The quoted passage assists in determining whether an obvious alternative verdict ought to be placed before the jury in emphasising the need to look at the way the case on the facts has been run. …

37. The Trial Judge has a discretion in deciding on the most appropriate course to take when faced with the possibility of an alternative verdict. Orders under s.23 of the Criminal Procedure Ordinanceinvolve a judicial discretion. If such a situation arises or may reasonably arise, it will be good practice for the Judge to elicit the views of the parties. Such views may not necessarily be decisive but they are certainly relevant. Counsel of course have the duty to assist the court in putting forward any relevant considerations, particularly those relating to a fair trial, for the Judge to consider.”[62]

105.  Mr Tam also referred us to other cases in order to assist us in the task of assessing the sufficiency of the evidence of provocation.  In the 1994 judgment of Cambridge, Lord Taylor of Gosforth CJ had this to say:  

“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?...

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. …

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.”[63] (Emphasis added.)

106.  Following on from Cambridge was the 1997 judgment of the House of Lords in R v Acott, where Lord Steyn said:

“Section 3 moderated the strict requirements of the common law defence of provocation. Section 3 can be divided into three parts: (1) the provoking conduct; (2) causatively relevant loss of self-control; and (3) the objective criterion whether the provocation was enough to make a reasonable man do as the defendant did. For the purposes of examining the constituent elements of provocation it is only necessary to consider the classic case of provocation of an accused person by the deceased. First, in respect of the provoking conduct section 3 abolished the common law rule that words alone could not amount to provocation. It did so by using the general words ‘whether by things done or by things said or by both together.’ The meaning of these words is plain and by using the shorthand expression ‘provoking conduct’ I do not intend to put a gloss on the words of the statute. Secondly, the question is whether the provoking conduct of the deceased caused the defendant to lose his self-control. This is usually called the subjective condition. In the absence of any evidence, emerging from whatever source, suggestive of the reasonable possibility that the defendant might have lost his self-control due to the provoking conduct H of the deceased, the question of provocation does not arise. Thirdly, the section provides, that 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. … But importantly, in the context of the present appeal, it remained the duty of the judge to decide whether there was evidence of provoking conduct, which resulted in the defendant losing his self-control. If in the opinion of the judge, even on a view most favourable to the accused, there is insufficient material for a jury to find that it is a reasonable possibility that there was specific provoking conduct resulting in a loss of self-control, there is simply no issue of provocation to be considered by the jury: Lee Chun-Chuen v. The Queen [1963] A.C. 220, 229, per Lord Devlin.”[64] (Emphasis added.)

107.  Lord Steyn then went on to discuss the issues raised in the appeal before him and at the end of his judgment, before answering the certified question, he commented on the invitation for the court to state what would be sufficient evidence of provocation to require a judge to leave the defence to the jury.  He said:

“Counsel for the appellant invited your Lordships to go further and state what would be sufficient evidence of provocation to justify a trial judge in leaving the issue of provocation for the jury to consider. The invitation was attractively put. But it must be rejected. What is sufficient evidence in this particular context is not a question of law. Where the line is to be drawn depends on a judgment involving logic and common sense, the assessment of matters of degree and an intense focus on the circumstances of a particular case. It is unwise to generalise on such matters: it is a subject best left to the good sense of trial judges. For the same reason it is not useful to compare the facts of decided cases on provocation with one another.”[65]

108.  Lord Steyn’s judgment was applied by the Court of Final Appeal in Zeng Liang Xin v HKSAR[66]and, together with Cambridge, it was applied by our Court of Appeal in Coady (No 2). 

109.  Here, neither the judge nor Mr Chui, after listening to the applicant’s evidence, thought that he had raised the defence of provocation.  As Ma CJ points out in his judgment, this is a very significant factor which may often be decisive of the issue of whether a judge is obliged to direct the jury on other defences not relied on by an accused.  But, in making this comment Ma CJ spoke of a factual alternative arising in the way the defence has dealt with the facts.  We note that Mr Chui appears to have been taken by surprise in the way some of the evidence came out.  He was clearly not expecting a factual alternative of self-defence to emerge from the applicant’s evidence until the judge raised the issue with him.  In these circumstances, it is not surprising that Mr Chui did not recognise that there might also have been provocation raised by the applicant’s evidence, when read together with the other evidence and placed in the context of the issues in this case.  As to the judge’s remark, it was made without any indication of whether it was a considered view reached after a detailed analysis of the evidence.    

110.  In considering whether the evidential threshold for a defence of provocation was met, it should be first noted that Mr Chui did not examine the applicant on the issue of loss of self-control and nor did Ms Lai, even though her case was of an unpremeditated, spur of the moment killing prompted by a sudden loss of temper.  Thus, there was no evidence from the applicant positively refuting a loss of self-control. 

111.  That there does not have to be a positive assertion by an accused that he lost self-control is now well settled law.  This issue can arise in cases where the accused advances a completely exculpatory defence such as a denial that it was he who assaulted the deceased.  This was the position in Cambridge and also in Coady (No 2).  In Coady (No 2), Keith JA explained how the legal principles operate in a situation where provocation may be in conflict with the defence being relied on by an accused.  He said:

“… The only reason why the appellant did not say that she had lost her self-control was because she was saying that she had not been the assailant. She could not have said that she had lost her self-control without at the same time abandoning her main defence to the charge. The fact that she did not suggest to the jury that she had lost her self-control does not, of itself, mean that the second question could not have been answered in the appellant’s favour. As was said in Bullard v R [1957] AC 635in the passage to which we have already referred, if there is evidence to support provocation, the issue of provocation must be left to the jury ‘whether or not the accused has said in terms that he was provoked’.

The fact is that evidence that the deceased’s conduct caused the appellant to lose her self-control did not have to come from the appellant. It could have come from other sources. And the evidence did not have to be direct. It would have been sufficient if there had been evidence of primary facts from which the loss of self-control on the part of the appellant as a result of the deceased’s conduct could have been inferred.”[67]

112.  In Daniel v State of Trinidad and Tobago, Lord Hughes JSC, in giving the judgment of the Board of the Privy Council, said of just such a situation:

“Of course, what the defendant himself says in such a case is not the end of the inquiry. In some cases it may be likely that the jury may reject his own account. That was not obviously so here, but still the responsibility of the judge is to look at all the evidence, not simply that of the defendant, and to ask himself whether, taking it at its most favourable to the defendant, the jury might conclude that he had lost control of himself.”[68]

113.  Lord Hughes also discussed the probative value of evidence of anger, saying:

“… Anger may be accompanied by a loss of control, and in some circumstances it may be evidence from which loss of control may be inferred. In other circumstances it may indicate the reverse, namely a considered, controlled, retaliation which, as Devlin J pointed out as long ago as R v Duffy [1949] 1 All ER 932, is positively inconsistent with the loss of control inherent in provocation.”[69]

114.  In another Privy Council decision, Smalling v R, the Board was concerned with the same issue of whether there was evidence of provoking conduct and evidence of loss of self-control.  Lord Bingham of Cornhill, in giving the judgment of the Board, said that in respect of the former, once there was evidence on which the jury could find there was provoking conduct then it is not for the judge to determine whether the accused was in fact provoked by that conduct.  The judge is “only concerned with factual possibilities, and it is proper to assume in the appellant’s favour that the conduct … was capable of amounting to provocation.”[70] In respect of the latter Lord Bingham observed that a short interval between the provoking conduct and the death of the deceased may point to a loss of self-control.  He said:

“[17] The fact that one event follows hard on the heels of another does not necessarily suggest that the one is caused by the other. It may or it may not. Sometimes the shortness of an interval between provocation and killing will strongly point to a causal link between the two. But all depends on the circumstances of the particular case.”[71]

115.  We now turn to consider what evidence there was in this case to support a defence of provocation.  A starting point to such a consideration is to have regard to the context in which the evidence fell to be assessed.  This was:

(i)     the prosecution was presenting its case on the basis that this was not a premeditated killing;

(ii)     rather, it was presented to the jury that something happened between the deceased and the applicant when they were together on 6 October 2011 to cause the applicant to lose his temper, form the mens reas for murder and cause harm to the applicant which resulted in her death;

(iii)    the prosecution could not produce any evidence of the circumstances of the deceased’s death;

(iv)    the deceased and the applicant had been lovers since almost mid-2008 and the applicant had, during the intervening years, treated her well and had been generous in taking care of her financially;

(v)     the applicant’s wife had become aware of the relationship and this had caused the applicant to want to end his relationship with the deceased;

(vi)    the deceased did not want the relationship to end and the possibility of it ending was causing her psychological distress;

(vii)   the deceased was known to her family and friends to have a somewhat aggressive and fiery personality;

(viii)  the applicant was perceived as a rather mild-mannered person who had formed a genuine bond with the deceased; and

(ix)    the applicant had been under stress since his wife had discovered the applicant’s relationship with the deceased and had attempted to commit suicide twice.    

116.  The evidence which the prosecution led was:

(i)     the deceased’s state of mind was such that she may have been inclined to vengeful conduct against the applicant;

(ii)     the deceased claimed she had evidence of the applicant being involved in insider dealing which she could reveal to a newspaper; and

(iii)    the deceased claimed she had successfully obtained from the applicant the sum of $1,900,000.

117.  In the present case, had Ms Lai not limited the prosecution case to an unpremeditated, motiveless murder committed by the applicant upon a sudden loss of temper, and had she not adduced the hearsay evidence from PW2 which provided a foundation for inferring provoking conduct which in turn could be the trigger for the formation of a murderous intent and/or a loss of self-control, then we have no doubt that no direction on provocation would have been needed.

118.  But, in the particular circumstances of this case, as set out above, the way the prosecution presented its case did focus on what it was that might have caused the applicant to, in effect, snap.  And this is where the evidence of the deceased’s state of mind was relevant.

119.  The evidence of a possible loss of self-control comes from the applicant when he testified to the deceased climbing onto the window frame.  He thought that she was “using the same scare tactic again to threaten me to stay”[72]. This prompted him to adopt an aggressive tone towards her and to snap at her. This, in turn, caused her to get angry and to slap the applicant’s face.  Their verbal confrontation then became physical and eventually violent.  The deceased was scolding the applicant, and hitting and kicking his body including his private parts.

120.  The applicantcould not say what injuries were caused to the deceased that resulted in her death or how they were caused.  All he could say was that the circumstances were confusing and that he could not recollect all that happened other than that he was frightened, unable to think of anything and wanted to protect himself even if this meant exerting force on the deceased equal to that which she was exerting on him[73]. 

121.  As we have earlier noted, the evidence of the applicant did not contradict a defence of provocation.  We do not see, therefore, that the evidence of the applicant ruled out of consideration the possibility of the applicant having lost his self-control in response to provocative conduct of the deceased. 

122.  We are of the view that the totality of the evidence disclosed a narrative of events and circumstances from which the jury might have concluded that the applicant had lost his self-control.  

123.  As we have earlier set out, the prosecution case was this was not a premeditated killing and something happened inside the flat that brought about the death of the deceased at the hands of the applicant.  There was the evidence that the deceased could be abusive and aggressive, particularly after the consumption of alcohol, and that she had previously assaulted the applicant, for which she was charged and dealt with by a court of law.  There was also the evidence that the deceased was emotionally distraught and upset with the applicant and that she became physically aggressive towards him.  It was during the course of this fight with the deceased that the applicant killed her.  There was finally the evidence that the deceased had told her neighbour that she wanted to make the applicant’s life difficult for the break up by alleging that he had engaged in insider trading.

124.  On the issue of the applicant losing his self-control, there was the evidence of his background and relationship with the deceased.  He treated the deceased very well and sought to assist her financially and emotionally, including making arrangements for her to consult a psychologist for her emotional problems.  The applicant testified that the deceased had been drinking alcohol and started a fight with him.  He told her to stop hitting him, but he could only remember that when she became more forceful, he exerted more force on her.

125.  In our view the evidence of a violent, but short, encounter prompted by provoking conduct of the deceased which caused the applicant to become angry, and during which something happened which the applicant could not now explain but which resulted in the deceased’s death, provides an evidential foundation for an inference to be drawn that in the course of an out of control melee the applicant himself lost his self-control and caused her death. 

126.  We agree with Ms Draycott that in the unusual circumstances of this case there exceptionally arose an obligation on the judge to direct the jury on the partial defence of provocation.

127.  That being so we find merit in the second ground of appeal and it must result in the appeal being allowed.  It becomes unnecessary, therefore, for us to address the third ground of appeal.

Retrial

128.  That leaves the issue of retrial.  Ms Draycott has urged us not to order a retrial but instead to substitute a conviction for manslaughter based on provocation.  She submits that, given the wealth of evidence pointing to provocation, and given that the applicant has been tried twice already, it would not be in the interests of justice to require him to undergo the ordeal of a third trial.

129.  We are not persuaded by Ms Draycott’s arguments.  A third trial may not be common but it is not unusual.  More importantly, the defence of provocation has never been considered by a jury and, also of significance, that is because the applicant has never advanced this defence and never sought the assistance of the judge to direct on it.

Disposition

130.  We allow the application for leave to appeal and treating the hearing of the application as the hearing of the appeal, we allow the appeal.  We order that the applicant be retried on a fresh indictment filed with the court within 14 days.

[1] See HKSAR v Chan Man Sum Ivan [2017] HKLRD 368

[2] Admitted Facts No 2, Appeal Bundle, page 37, [1]-[2].

[3] Appeal Bundle, page 330A-H.

[4] Appeal Bundle, page 330S-T.

[5] Appeal Bundle, pages 348T-349A.

[6] Appeal Bundle, page 349C-D.

[7] Appeal Bundle, page 350L-S.

[8] Appeal Bundle, page 356H-O.

[9] Appeal Bundle, page 362K-M.

[10] Appeal Bundle, page 366J-T.

[11] Appeal Bundle, page 416, counters 44-46.

[12]  Appeal Bundle, page 133 D-E.

[13] Appeal Bundle, page 136 C-D.

[14] Appeal Bundle, page 142B.

[15] Appeal Bundle, page 143A-D.

[16] Appeal Bundle, page 147U-148E.

[17] Appeal Bundle, page 151R.

[18] Appeal Bundle, pages 152A-153I, 153T-154F, 154P-155M and 156A-I.

[19] Appeal Bundle, page 189R-T.

[20] Appeal Bundle, page 191G-I.

[21] Appeal Bundle, page 194J-L.

[22] Appeal Bundle, page 214A-B.

[23] Appeal Bundle, page 214G-I.

[24] Appeal Bundle, pages 214U-215B, 215G-H.

[25] Appeal Bundle, pages 216I-J, Q-R, 217B-E.

[26] Appeal Bundle, page 226Q-T.

[27] Appeal Bundle, pages 227F-T, 228A-U.

[28] Appeal Bundle, page 229T-U.

[29] Appeal Bundle, page 231M-O.

[30] Appeal Bundle, page 233D-F, O-P.

[31] Appeal Bundle, page 239J-M.

[32] Appeal Bundle, page 241A-B and H-I.

[33] Appeal Bundle, page 371P-R.

[34] Appeal Bundle, page 388F-Q.

[35] Appeal Bundle, page 377B-G.

[36] Appeal Bundle, page 382L-T.

[37] Appeal Bundle, page 269N-S.

[38] Appeal Bundle, pages 270I-P, 270S-271P.

[39] Appeal Bundle, page 274R-T.

[40] Appeal Bundle, page 285H-P.

[41] Appeal Bundle, page 289N-Q.

[42] Appeal Bundle, pages 299T-300E.

[43] Appeal Bundle, pages 301U-302E.

[44] Appeal Bundle, pages 310O-R, 311E-G.

[45] Appeal Bundle, pages 312T-313B.

[46] Appeal Bundle, pages 314N-315T, O-S.

[47] See [97] of the judgment.

[48] (2019) 22 HKCFAR 368

[49] Appeal Bundle, page 86A-S.

[50] Appeal Bundle, page 88C-G.

[51] In the Respondent’s Skeleton Submissions dated 15 June 2020, Mr Tam repeated this submission.  At [5] of that document he said:

     “Indeed, the evidence that she did not want to break up and therefore wanted to take revenge upon a breakup, coupled with the evidence of her propensity to violence could be supportive of the defence version of her being the aggressor who assaulted the Applicant repeatedly during the fateful incident.” 

[52] See [62] of this judgment.

[53] [2000] 3 HKLRD 573

[54] [1995] 2 Cr App R 513

[55] [1994] 1 WLR 971

[56] [1957] AC 635

[57] [1997] 2 Cr App R 104

[58] [2000] 1 WLR 1270

[59] (2019) 22 HKCFAR 368

[60] (2019) 22 HKCFAR 368, 385-387.

[61] [1986] WLR 1202 at 1205-1206.

[62] HKSAR v Chau Yui Ming (2019) 22 HKCFAR 368, 388-389.

[63] [1994] 1 W.L.R. 971, 975D-976A.

[64] [1997] 1 W.L.R. 306, 310F-H, 311E.

[65] Ibid, at page 313 D-E.

[66] (1997-98) 1 HKCFAR 12, 19B-C.

[67] [2003] 3 HKLRD 573, 590E-H.

[68] [2014] 2 W.L.R. 1154, 1160G-H.

[69] Ibid, 1161A-B.

[70] [2001] 4 LRC 307, 314b at [14].

[71] Ibid, at 314g.

[72] See [57] ante.

[73] See [60] ante.