HKSAR v. LAI YIP KIE

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1996, No.367
(Criminal)

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D E C I S I O N

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Power, Ag. Chief Judge H.C. (giving the judgment of the Court):

1. The applicant Lai Yip-kie was convicted of murder on 11th June 1996. He applied for leave to appeal against that conviction and his application was dismissed on 29th January 1997. He now seeks an order from this court certifying that points of law of great and general importance are involved in this matter.

2. The points are set out in the Amended Notice of Motion are:

"1. Whether, on trial for murder, the partial defence of provocation is precluded if a Defendant enlists a Third Party to kill the person(s) by whom the Defendant has been provoked?

2. Whether things done or things said or both together by a deceased person resulting in a pending serious false criminal charge against a Defendant, may, on trial for murder, constitute continuing provocation?

3. Whether the trial Judge has the power, despite the judgment in R. v. Ahluwalia 96 Cr.App.R. 133, to withdraw the defence of provocation from the Jury on the ground that there was no evidence on which the Jury could find a reasonable man would have been provoked?"

3. Mr. Grounds, who appears today for the applicant, is seeking to establish that there was evidence which raised provocation and has read passages from the confessional statement by the applicant, which was the principal evidence against him, which he submits demonstrate that the applicant, because of the provocative acts of Madam Wong, was "out of control" during the summer of 1995 during which time he hired the assassin.

4. The Court of Appeal dealt with this aspect of the matter in the following way:

"Had he killed both the deceased in hot blood on the occasion of any of those outrages, or even some time thereafter, the partial defence of provocation might well have availed him to reduce his offence from murder to manslaughter.

But these killings were in cold blood by the hand of a paid arsonist and assassin.

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

'When on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.'

Here, there was no evidence that the 1st applicant was acting under a loss of self-control. Indeed, the evidence was to the opposite effect.

As Lord Lane CJ said in R. v. Whitfield (1976) 63 Cr.App.R. 39 at 42:

'Provocation is some act or series of acts done or words spoken by the deceased to the accused which would cause in any reasonable person and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him for the moment not master of his mind.'

By its very nature, the act of hiring an assassin, let alone haggling with him about the price of the killings, is simply not the act of a man in such a passion as not to be master of his own mind. Rather, it is a cold and calculating act.

So there was no evidence of provocation in law as the law stands. The judge was therefore right not to leave provocation to the jury."

5. We are satisfied that the Court of Appeal correctly held that there was no evidence of provocation and was right, for that reason, to reject the appeal. Our saying this must, however, not be taken as a rejection of the respondent's primary argument that the defence of provocation has no application to circumstances that exist when an assassin is hired to do the killing. For present purposes only we accept that if the applicant be right that provocation can apply to an incident involving an assassin, there was, in the present case, no evidence capable of raising such a defence. We therefore refuse to certify.