THE QUEEN v. LO YUNG KAN

IN THE COURT OF APPEAL

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JUDGMENT

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McMullin, V.-P. :

1. LO Yung-kan was convicted on the 15th of March 1985 in the High Court of the murder of NG Dor-kai, a married woman who at the time was about 36 years of age. He now applies for leave to appeal against that conviction.

2. The applicant did not give evidence and the nature of his previous relationship with the deceased is described in a statement which he made after arrest and which was admitted' in evidence without contest.

3. Counsel for the Crown, in opening, was content to rely upon that statement for an account of the previous relationship between the applicant and the victim and also for admissions contained therein as to the assault which resulted in the death of Madam Ng.

4. It was never in dispute that the applicant was admitted by the deceased to her apartment in the Ko Fat Building in Java Road some time in the morning of the 24th of October 1984 and that, at a time not certainly established but probably at about 11 o'clock or shortly thereafter, he assaulted her with a chopper inflicting a large number of wounds mainly to the left side of her face and the top and rear of the head. Some of these caused fracturing of the skull. There were also 12 stab wounds to the left arm consistent with having  been caused by a pair of scissors which were found near the chopper on subsequent examination of the premises by the police. In all there were some 59 cut wounds on the head and arms of the deceased which, on the forensic expert evidence, could have been caused by the chopper. There was no eye-witness of the attack on Madam Mg.

5. The care-taker of the building said that at about 11:20 a.m. he saw the applicant at his office. He recognized him as a person who had visited Madam Mg on various occasions over the previous year or so. The applicant told him that he had had a dispute with his girl friend and had chopped her with a knife, that she was bleeding profusely and that he wanted help to save her. The care-taker said that the applicant's eyes were somewhat red but when pressed further as to his appearance and demeanour he said that he had noticed nothing especial about him.

6. The applicant asked for the police to be summoned. They were summoned and shortly after came to the scene. To several of these officers the applicant repeated his request that the woman should be saved and coupled with that an offer that his life should be, as he put it, "used" for that purpose.

7. The victim was removed to hospital where she received immediate surgical and other treatment. She survived a cardiac arrest in the course of operation but she died at 7:45 the same evening. The cause of death was intercranial haemorrhage and injury to the brain.

8. After arrest the applicant made two statements while in custody. In his first statement he said that he had acted on the spur of the moment and did not intend to chop her. In the second and longer statement, he said that he had visited Madam Ng the previous night at about 12 midnight. The victim's son and her husband were present at the time. He said he was returning some spectacles to her but in some manner not described a quarrel seems to have arisen. She pushed him and his galsses became damaged. Subsequently she lent him a pair of her own in order to wear to his home. He went on to say that on the following morning, the 24th of October, he went to apologize to her for disturbing her in the previous night. He asked her to come and to have tea, she refused. She also refused to agree to phone him after work that day. She then tried to push him out and when he resisted; and asked her to talk a little longer, she herself tried to leave the premises. He pulled her back. He said that she then looked very hostile: He became enraged and he went to the refrigerator. He had earlier been to the refrigerator from which he had removed a bottle of beer and on that occasion he had seen that there was a chopper inside it. When he became enraged in the manner just described, he took out the chopper out of the refrigerator arid assaulted her with it. When she collapsed on the floor he sat down and waited for a few minutes to watch her, then he went to the care-taker to dial 999 and to get an ambulance.

9. After his arrest, the applicant was examined at about 5 o'clock in the evening by Dr. Lau who gave evidence. He had some very small injuries upon one hand, a slight cut wound at the base of one finger and two small bruises at the rear and base of two other fingers, described by the doctor as very minor. To the doctor, he volunteered the information that on the previous night he had drunk, what was described by the doctor, as a "significant quantity" of Chinese herbal wine and also that he had consumed in the morning, presumably the morning of the assault, half a can of beer. For that reason the doctor carried out tests relating to his motor capacity, none of these tests revealed anything in the nature of present intoxication. Samples of blood and urine were taken. This was some six hours after the assault. These samples were subsequently examined. The blood was found to have no alcoholic content but the urine showed 27 mg per 100 m1.

10. Another witness, a Chemist, Mr. Ballantyne, gave evidence to the effect that for the purposes of the road traffic legislation in Britain, when the prosecution are seeking to show that the defendant was under the influence of liquor at the time that he was found in control of his motor car, the minimal quantities required to show intoxication for the purposes of the legislation, either in urine or in blood, are considerably greater than the quantity of alcohol found in the urine of the applicant upon the test carried out by Dr. Lau. In any event the very vague possibility that liquor played a part in this affair was fully explored by the trial judge. What it amounted to was the suggestion that the applicant had at an unspecified hour during the previous night consumed an unspecified amount of Chinese herbal wine and half a can of beer later that morning. As the judge pointed out, the applicant, in his statement, said only that he had taken a bottle of beer from the refrigerator. He did not even say that he had consumed any part of it. It must be remembered also that the care-taker said that there was no smell of alcohol when he was confronted by the applicant who came to speak to him on that morning, after the event.

11. That in brief compass describes the facts of the case. Clearly they afforded very little purchase to counsel for the defence in his endeavour to mitigate the charge. Nevertheless provocation and in some measure the question of intoxication were urged as possible lines of defence.

12. So far as provocation is concerned, even if one accepts fully the account of what happened as described by the applicant-in his statement, it is difficult to see any substantial ground for such a plea at all. He had said in his statement that when he produced the chopper he was not in any way resisted by the woman who merely raised her hand immediately before he set upon-her. The evidence discloses nothing in the nature of a -Grave and sudden provocation of the kind which continues under our law to be the, kind of provocation necessary to found such a plea. Provocation was nevertheless left to the jury and it may be said that so much curious law has concreted about this concept that one must sympathize with the judge who felt obliged to do so even on such tenuous matter.

13. It is said however, and this is part of the first ground of appeal, that the judge's directions on provocation were confusing. We cannot agree. The judge carefully detailed what the law prescribes in relation to provocation. Those purely legal directions are impeccable .and if he did not go on to point to such matter as might have occasioned a provoked reaction that may well have been in order not to underline unduly the very exiguous character of what was being described as such.

14. The jury had the evidence before them and they cannot have had very much difficulty in disposing of the suggestion that the applicant had acted under provocation. However, in the course of his argument, counsel put it that the judge had not adequately dealt with the compounding effect of the consumption of alcohol on the possibility of provocation. We are aware of no authority which supports the proposition that a man may avail himself of an increased and self-induced irritability as affording him the benefit of this plea. Indeed the decided cases are overwhelmingly against counsel on this point. While it is true that in, Camplin ^(l) to which Mr. Bernacchi referred us, the Court of Appeal amplified the reach of the English section which is reproduced in Section 4 of the Homicide Ordinance to provide that the jury must consider such of the personal characteristics of the accused as they think might have affected his reaction to the alleged provocation, the suggestion that the consumption of liquor should be taken into account in deciding whether the reaction was that of a reasonable man has been firmly rejected in several cases, most recently by the criminal division of the English Court of Appeal in R. v. Newell ⁽²⁾. In that case the court held that in considering the defence of provocation under Section 3 of the Homicide Act of 1957 the jury must be guided in their search for what a reasonable man would do by their own reactions, individually or collectively and by their own experience. The court said that the characteristic necessary to uphold such a defence has to be of sufficient permanence as to be regarded as part of the individual character or personality, not something transitory.

15. Confronted with this authority, Mr. Bernacchi concedes that it does substantially cover the point which he was endeavouring to make on this particular matter and we are not prepared to follow his suggestion that that being a decision of the Court of Appeal we are not necessarily bound by it.

16. Then it is said that the judge was in error when he directed the jury that they should first consider whether they found the murder charge had been proved and then only go on to consider provocation. What is being said here is that since the change in the law which we find in Section 65(a) of the Criminal Procedure Ordinance the objective test as to what is the reasonable and probable result of a man's act has been removed so that it is necessary to point out to the jury that they must find what is the intention of the particular person facing the charge. Mr. Bernacchi's point is that there are two possible grounds for provocation, one is where the intent is clearly present but where the person who does the act which kills is labouring under a grave and sudden provocation so as no longer to be the master of his mind; secondly, counsel says, there is the situation which may arise when, as a result of grave and sudden provocation, there is a reaction on the part of the accused of so sudden, violent and fierce a nature that it can cannot be said that any question of intent has entered into the matter at all.

17. However, we are satisfied that even if it be conceded that the idea of provocation may include something of this sort, it is a sufficient answer in the present case to say that the facts disclosed on the evidence leave no ground whatsoever on which to base the suggestion that anything was done by the victim which could have occasioned a reaction of that kind.

18. Finally it is said, and this is the second and principal of ground of appeal, that the judge wrongly distinquished between intention and premeditation. The judge did make a specific reference to premeditation. This was in dealing with a somewhat unhelpful reference to American law as he perceived it to be which was made by counsel for the defence and in particular the distinction, which he drew to the attention of the jury, between first and second degree murder. The judge rightly said that the law as it stood in the United States was no concern of the jury, and in directing them that the Crown did not have to prove premeditation, the judge was obviously referring to something in the nature of pre-planning of the act. A little later he directed them as to the nature of the intent which must be proved and he did so in terms which can have left the jury in no doubt that the requisite intent to be proved by the Crown was one which could arise at the moment when the act was done. What he said appears in page 122 of the transcript. The judge there was dealing with the possibility that the jury had been previously somewhat misdirected by counsel who had suggested that the Crown must prove an intent to kill. The judge puts the matter this way:

"Mr. McKinzie-Ross told you in his final address to you that if you accept -and I use his own word - if you 'accept' that the accused did not intend to kill the deceased, then you must find him not  guilty of murder.

Well, fromwhat I have said to you just now, that isn't so because if you are satisfied to the extent that you are sure that the accused when he inflicted those wounds intended to cause grievous bodily harm, serious bodily injury, and the deceased died from those injuries, then the accused would be guilty of murder."

That was a perfectly clear direction as to the nature of the intent required. And it was clearly separated from the earlier direction in which the judge had been dealing with the suggestion that American law was irrelevant to the considerations of the jury.

19. As counsel's argument developed, however it emerged that the real complaint was somewhat different in nature. Mr. Bernacchi cited the recent decision of the House of Lord in R. v. Moloney ⁽³⁾. In that case their Lordships were concerned to cldarify the law on the question of intent in murder. They reproved the practice which has sometimes been followed by trial judges since the decision of the House of Lords in Hyam ⁽⁴⁾ of instructing the jury that foresight of probable consequences is equivalent to intent to cause either death or grievous bodily harm. Lord Bridge, in the leading speech, went on to say that such a direction was necessary only in rare cases and he outlined the terms in which that direction should be given in any case in which it is called for.

20. Although Moloney is principally concerned to eliminate from the law the idea that foresight of consequence is to be equated with intent, Mr. Bernacchi has seized upon it in support of the suggestion that the judge in referring to premeditation and in excluding the idea of premeditation from the jury's purview, might have been understood by them as referring to foresight of consequences. He says that since foresight of consequences is, evidentially speaking, a component of intent as even their Lordships in Moloney allow, the jury in the present case may have thought that, even if they-accepted that the applicants mind was affected by drink, they would not need to consider whether that factor might have made it impossible for him to foresee grievous bodily harm as a probable consequence of his acts.

21. It must be said that it seems to us very unlikely that the jury would ever have indulged in any such subtle speculation which would amount to interpreting the single word "premeditation" as proposing an objective rather than the true subjective test of the applicant's intention.

22. The judge told the jury later in clear terms that the Crown must prove an intent to cause grievous bodily harm. His reference to premeditation must, we think, have been understood by them as a reference to prior planning and nothing more.

23. But the true nub of counsel's argument at this point is that while the judge did leave manslaughter to the jury on the basis of provocation, he did not specifically direct them that if for any reason, including drink, they thought it possible that the applicant may not have formed the specific intent necessary to support the charge, they should bring in a verdict of manslaughter. However, although no such direction was given, we are satisfied that the evidence was such that the jury could not reasonably have concluded that the applicant did not have the necessary intent.

24. Mr. Bernacchi also referred us to the decision of the Court of Appeal in the case of Edwards ⁽⁴⁾.  In that case the Privy Council allowed the appellant's appeal, the Full Court having sustained a direction by the trial judge in which the latter had taken away the issue of provocation from the jury. The circumstances, as perceived by the Board, were such that provocation was a live issue and it was held that it should not therefore have been withdrawn.

25. The Full Court had so found but had applied the proviso. This was said to have been wrong. Accordingly a conviction for manslughter was substituted.

26. In our case, nothing was withdrawn from the jury which ought to have been left to them. All that is said is that the judge failed to remind the jury of the possible effect of alcohol on the question of intent. Since, in the opinion of this court, there was virtually no such evidence, we do not think that the want of such a direction is one which even calls for the use of the proviso. For these reasons, therefore, the application must be refused.

(1)    (1978) 67 Cr. App. Rep. 14

(2)    (1980) 71 Cr. App. Rep. 331

(3)    (1985) Vol. 2 W.L.R. 648

(4)    (1975) A.C. 55

(4)    (1973) A.C. 648