HKSAR v. LIANG YAOQIANG

CACC 131/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 131 OF 2014

(ON APPEAL FROM HCCC NO. 457 OF 2013)

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JUDGMENT

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Hon Lunn VP:

1.  Regrettably, the Court is divided on the resolution of the applicant’s application for leave to appeal against his conviction for the murder of Madam Yeung Sau-yu on 12 September 2009. For the reasons articulated in the judgment of Macrae JA, I would refuse the application. However, I wish to add some reasons of my own.

2.  The issue in this case is narrow.  It is whether or not the judge gave the jury adequate directions in respect of the second limb of the provocation direction. Following the unanimous decision of the Court of Final Appeal in Ho Hoi Shing v HKSAR[1], the relevant law is now clear.  The same panel sitting in this application, agreed that to be so in our recent judgment in HKSAR v Poon Man Sum[2].  In his judgment, Chan PJ [3] cited with approval a passage in the judgment of Lord Nicholls in the Advice of the majority in the Privy Council in Attorney-General for Jersey v Holley, noting that Lord Nicholls had adopted the comments made by Lord Hobhouse in his dissenting judgment in the House of Lords in R v Smith (Morgan)[4].  Lord Nicholls had said of the second limb of the direction:[5]

“ The second ingredient, often called the objective or evaluative ingredient, raises, in the language of the statute, “the question whether the provocation was enough to make a reasonable man do as he did ... [taking] into account everything both done and said according to the effect ... it would have on a reasonable man”. Broken down, this objective ingredient has two elements. The first element calls for an assessment of the gravity of the provocation. The second element calls for application of an external standard of self-control: “whether the provocation was enough to make a reasonable man do as he did”.

3.  In his judgment in R v Smith (Morgan), Lord Hobhouse said of the second limb of the direction in provocation:[6]

“The second question is what is called the ‘objective’ question. It is, in the words of section 3, “the question whether the provocation was enough to make a reasonable man do as the [defendant] did” taking “into account everything both done and said according to the effect which … it would have on a reasonable man.” This question itself contains two elements. The first is the assessment of the gravity of the provocation. The second is the assessment how a reasonable man would react to provocation of that gravity. The second element involves applying a standard of self-control. Essential to the understanding of the authorities and the issue on this appeal is the distinction between these two elements. It is well established and not in dispute that in assessing the gravity of the provocation everything both said and done must be taken into account and that this inevitably involves taking into account any peculiarity of the defendant which affects that gravity.” [Italics added]

4.  Of the purpose of the second question, Lord Hobhouse said that it is:[7]

“…to provide a standard of ordinary self-control so as to compare the reaction of the defendant as he was in fact provoked to lose his self-control with the reaction of the person with ordinary powers of self-control to provocation of equal gravity.”

5.  At the conclusion of his speech, Lord Hobhouse identified the constituent statutory elements of provocation.[8]  Of the second limb of the direction, he said:

“(c) If the jury conclude that the defendant may have been provoked to lose his self-control and do as he did, the jury should, as an exercise of judgment, but taking into account all the evidence, form a view as to the gravity of the provocation for the defendant in all the circumstances.

(d) Finally, the jury should decide whether in their opinion, having regard to the actual provocation ((a) and (b) above) and their view as to its gravity ((c) above), a person having ordinary powers of self-control would have done what the defendant did.”

[For purposes of presenting the stages (c) and (d) with emphasis, the text has been presented in separate paragraphs.]

6.  In the context of the summing up as a whole, the issue in this case is whether or not the following direction of the judge was an adequate direction in respect of the law and the relevant evidence in respect of the second limb of provocation:[9]

“ There is still a question of whether an ordinary person of the accused’s age and sex would have done what he did. If you feel sure that an ordinary person of his age and sex, even in the accused’s circumstances and even having undergone all the provocation which the accused told you that he had undergone at the time of the killing and leading up to it over a considerable period, would not have done what the accused did, then the doctrine of provocation would not operate to reduce murder to manslaughter. In that situation, if you feel sure that the accused intended to kill the deceased or at least to cause her really serious injury, you will find him guilty of murder. As I have told you, by the expression “an ordinary person”, the law means a person who has the power of self-control to be expected of an ordinary sober person who is of the accused’s age and sex.” [Italics added]

7.  The narrow issue is whether or not the passage in italics brought home to the jury that, in the context of the second limb of the direction that they had received in respect of provocation, they were required to have regard, as the first element, to the gravity of the provocation to the applicant himself.  For my part, I am satisfied that it does.

8.  Earlier in the summing up, having raised the issue of provocation for the first time, the judge set out for the jury the matters to which the defence pointed as relevant to the issue:[10]

“Very briefly, the matters put forward by the defence as provocation consists essentially of the deceased’s affair with another man, coupled with a deterioration of relationship between the accused and the deceased; the suspicion that she was having sexual relations with another man, which suspicion proved to be true even though he suspected the wrong man; his discovery of the used condom and the bed in a mess, with pubic hair on the bed sheet and a man’s hair on the pillow; her flaunting the affair and taunting him with it saying that it was none of his business; her thrusting a used condom in his mouth and telling him to eat it; comparing his appearance and sexual prowess unfavourably with other men by saying that he was no longer exciting to be with anymore; her saying that his daughter had been fathered by another man; and her refusal to say who she was having sexual relations with. That is a rough summary; the details are in his testimony, which I will come to later.”

9.  Immediately thereafter, the judge gave the jury directions of law in respect of provocation.  Of the second limb of the direction, she said:[11]

“ This brings me to the second question on the issue of provocation. It is a question of fact for you to decide as the sole judges of fact, and it is whether an ordinary person of the accused’s age and sex would have been provoked to do as he did.”

10.  Of what was meant by the expression “ordinary person” the judge said that such a person was someone, “who has the power of self-control to be expected of an ordinary sober person who was on the accused age and sex”.[12]

11.  Of what is expected of an ordinary person, the judge said:[13]

“The law expects people to exercise control over their emotions. If, for example, a person has an unusually volatile, excitable or violent nature, he cannot rely on that as an excuse. So the ordinary person in this context is a person who is not exceptionally excitable or given to violence, but possess of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today.”

12.  As the judge had indicated to the jury, at the time at which she provided them with a summary of the factors to which the defence pointed as relevant to the issue of provocation to the applicant, the judge gave a lengthy and more detailed description of the applicant’s testimony in due course.[14]  First, the judge described the applicant’s testimony of the fact that both he and the deceased had been married to others.  The applicant and his wife were married in the Mainland in 1995 and there was a daughter of that marriage.  His wife came to Hong Kong in 2004, but he and his daughter remained on the Mainland.  He met the deceased in 2005 in the Mainland and, having begun an intimate relationship in 2007, the two of them together with his daughter came to Hong Kong in 2009.  He was separated, but not divorced, from his wife.  The deceased was divorced from her husband.

13.  The judge reminded the jury of the applicant’s testimony of the deterioration of his relationship with the deceased over a period of time, as “she became very impatient with him” and, for his part, he became suspicious about her infidelity and his discovery of condoms, in the toilet of their home and outside on the staircase, and male hair in their matrimonial bed.

14.  Then, the judge addressed the applicant’s testimony of events on the evening of 12 September 2009.  She noted that it was his account that in face of his confronting the deceased with the lie that she had told about having spent the evening having dinner with her former husband, informing her that he had spoken to him on the telephone, the deceased had reacted:[15]

“The accused told you about her big reaction to this.

Now she admitted what she had been denying before, saying that all the men she had been with were more handsome than him and better lovers than he was, he being incompetent in that respect. Upon him pressing her as to who had used the condom, she picked it up and thrust it at his mouth saying that he should eat that and that he would not have to ask anymore. There was a struggle between them in the course of which the condom was broken.

Upon her continuing to thrust the condom at his mouth, he stopped her by slapping her and squeezing her neck for 10 seconds.  He used great force.  When he let her go, she spoke of his wife’s infidelity and said that his daughter was fathered by another man.  He was in rage and he was furious.  He ran into the kitchen, fetched the chopper and, in his fury chopped with all his strength randomly.”

15.  For my part, I am satisfied that, when the judge directed the jury that in addressing the objective question posed in the second limb of the direction, it was made clear to them, and they would have so understood, that in viewing that question through the prism of the ordinary person of the applicant’s age and sex, they were to have regard to the provocation to the applicant himself.  In particular, provocation not only on the evening of the killing, but also in the context of his personal circumstances in the prolonged misconduct towards him over a period of time.  That is what the jury was directed to have regard to, when asked to consider whether the ordinary person would not have done what the applicant did:

“…even in the accused’s circumstances and even having undergone all the provocation which the accused told you that he had undergone at the time of the killing and leading up to it over a considerable period…”

16.  Clearly, the evidence relevant to the applicant’s “circumstances” was the evidence of his personal circumstances, including: marriage and fatherhood; his wife’s infidelity followed by their separation; and then his subsequent cohabitation with the deceased.  That evidence, as the judge reminded the jury, included the evidence of the applicant’s wife, Madam Chung Mei-ling that, after she had come to live in Hong Kong, and the applicant discovered that she was living with a boyfriend “his reaction was no stronger than to scold her”[16]  Similarly relevant, was the evidence of the applicant’s daughter, Ms Liang Wai-min, including that he was a hardworking man, who also did most of the domestic work, but who had become unhappy as “the deceased’s feelings for the accused had deteriorated”.  Also, she had said that he was “a loving father who looked after her well and whom she still loves”.[17]

17.  Obviously, the judge was directing the jury to have regard to the applicant’s personal circumstances when considering the evidence of the history of provocation, leading up to the provocation directed at him on the day of the killing itself.  Again, quite clearly their attention was directed to the earlier recitation of the relevant evidence by the judge.

18.  Finally, in my judgment it was impermissible for the judge to have directed the jury that as a matter of law they were to proceed on the basis that the applicant was provoked into a sudden and temporary loss of self-control.[18]  Similarly, it was impermissible to direct them to proceed on the basis of an acceptance of the applicant’s testimony in respect of what was said and done between the applicant and the deceased.[19]  Those were matters of fact which lay in the province of the jury.  However, for the reasons articulated in the judgment of Macrae JA, I am satisfied that they were directions in favour of the applicant.  Certainly, they were not, and did not operate, to his disadvantage.

Hon Macrae JA:

Introduction

19.  The applicant was convicted upon a retrial before V Bokhary J and a jury of the murder of Madam Yeung Sau-yu at Room F, 4^th Floor, Wo Hing Building, 376 - 378 Castle Peak Road, Cheung Sha Wan, Kowloon.  He was sentenced to life imprisonment.  He now appeals against his conviction.

The trial

The prosecution case

20.  The prosecution case was that at sometime around 6 or 7 am on 12 September 2009, the applicant murdered Madam Yeung, a lady with whom he had been cohabiting, at their place of residence (“the premises”) in Cheung Sha Wan.  There was no dispute at trial that the applicant had inflicted multiple chop wounds on the deceased as a result of which she died.  The prosecution alleged that the applicant had intended to kill her or, at least, to cause her really serious injury and disputed that he was provoked in the legal sense into doing what he had done.

21.  In the evening of 12 September 2009, the police located the applicant’s daughter who provided a key to enter the premises.  Having entered the premises, the police found the deceased lying on the floor with numerous chop wounds to her body.  A forensic pathologist, Dr Ng Chung-ki, testified that there were at least 213 such wounds in addition to signs of strangulation.  An ambulance was summoned to the premises, but the deceased was certified dead at the scene.

22.  At around 8 pm on 13 September 2009, the applicant was arrested by police officers at Shenzhen Bay Immigration Control Point upon his return to Hong Kong from the Mainland.  Under caution, and again this was not disputed, he responded: “The person was killed by me.  (It) was she (who) made me like this out of anger.  (She) remained the same no matter what was said.”

23.  In two subsequent video recorded interviews with the police, the applicant recounted in considerable detail the history of his relationship with the deceased and how he had come to suspect that she was having an affair with another man.  Summarising the effect of the two records of interview, the applicant maintained that on 12 September 2009, the deceased had returned home late at about 1 or 2 am.  He confronted her with a used condom he had found the previous afternoon in some discarded rubbish which had been placed on the 2/F – this was not the first time he said he had found a used condom – and demanded that the deceased reveal the identity of the man she had been seeing.  He said that at the time he had discovered the condom, it was still warm.  He had also found a man’s pubic hair on the bed which he had earlier tidied but which had obviously been recently occupied.  The deceased denied having anything to do with the condom and refused his requests to check her mobile phone.  A quarrel developed in which the applicant initially slapped the deceased a few times.  He then went into the kitchen and drank a small amount of wine.  He had intended to forget the whole matter, but the deceased was, he said, someone who was “sharp-tongued”. It was when she said she would like to get pregnant that he took up a chopper, intending merely to scare her.  However, the deceased was not frightened by his actions and responded that she did have another man.

24.  The applicant became furious and chopped the deceased, firstly on the leg only, and then on her hand as she fended him off.  Having begun chopping her, he pressed her neck with his left hand to prevent her from crying out, and threatened to strangle her if she would not reveal who this other man was.  After chopping her a few times (which injuries, he said, were not serious), he offered to take her to hospital.  However, she was still “sharp-tongued” and defiantly asked him to chop her to death for she would still not tell him, which made him very angry.  The applicant then repeatedly chopped at her head, dislodging several of her teeth in the process. He subsequently took a shower (by which time he did not know whether the deceased was still alive or not), changed his clothes, and left the premises to look for his daughter.  He then went to Macao, where he was refused entry because he did not have his Certificate of Identity, and on returning to Hong Kong, he left for the Mainland via Lo Wu, where he was persuaded by his elder sister to return to Hong Kong to surrender to the authorities.

25.  In summary, the applicant told the interviewing officers that he was sober at the time of the incident; that he had acted out of sudden rage because the deceased had been persistently unfaithful and had lied to him; and that he acted out of character as if were a man possessed.  He believed he had given the deceased some 10 to 20 chops.

26.  The prosecution called as its first witness at trial the man who had in fact been having an affair with the deceased.  Although this individual was not the man whom the applicant had suspected, the applicant was clearly correct in his suspicions that she had indeed been seeing another man.  Indeed, the witness testified that he and the deceased had in fact had sexual intercourse twice on the day leading up to the killing.

The defence case

27.  The applicant elected to testify at trial.  He acknowledged that there were a few matters which he had not told the police, but otherwise his answers in the records of interview were all true.  In particular, he accepted that he had not told the police that he had himself had sexual intercourse with the deceased on the day of her death, because he was embarrassed to say so.  Nor did he tell them about the deceased thrusting the used condom he had found into his face, since he considered it was disgusting to talk about it.

28.  The applicant testified that he was born on the Mainland and was 45 years old at the time of his trial.  He had received education to senior secondary school level.  He had married his former wife in 1995, which union had produced a daughter. His wife had then come to Hong Kong in 2004, leaving him and their daughter behind on the Mainland.  In 2005, he met the deceased (whose husband was in Hong Kong) and became intimate with her in 2007, at which time she was still seeing another boyfriend; according to the applicant, the deceased had had abortions previously.  The applicant, his daughter and the deceased came to settle in Hong Kong in April 2009.

29.  Before coming to Hong Kong in April 2009, the deceased had promised to marry the applicant.  Initially upon his arrival in Hong Kong, their relationship had been good, but she soon began exhibiting impatience with him because of ongoing treatment he had been receiving in the Mainland for a work injury.  The applicant said he began to notice signs which suggested to him that the deceased was having an affair with someone.  On 5 or 6 August 2009, the applicant had seen a used condom in the toilet.  He asked the deceased about it and was told that it was due to some blockage in the system.  The deceased accused the applicant of suspecting her and their relationship deteriorated.  She stopped telling him when her day off was and would give him various reasons for staying out all night.  Other suspicious conduct included calling him from an unusual telephone number and claiming to be at her workplace when the applicant already knew she was not there.

30.  On 11 September 2009, the deceased had asked the applicant to return home early for dinner but when he was about to arrive home, she called him to say she had to have dinner with her ex-husband.  In the telephone conversation, the applicant heard a male voice in the background asking “Is it him?”  Accordingly, he hurried home where he discovered a pubic hair on the bed, along with the short hair of a male on the pillow.  In a discarded rubbish bag on the landing, he retrieved a used condom which was still warm.  He thereupon telephoned the deceased and asked if she had taken a man home.  She denied it and hung up on him.  He called her again later and she told him that she was having dinner with her ex-husband.  The applicant knew this to be false because he had earlier had a conversation with her ex-husband.  He left home to try and find her, but without success.  He returned home and telephoned her one more time but she again hung up.  After failing to reach her again on the telephone, he looked out the window and saw her speaking on the telephone in the street.

31.  About 15 minutes later, the deceased arrived at the premises and it was obvious to the applicant that she had been drinking.  Upon seeing the applicant, she asked among other things if he had become a part-time garbage collector.  She repeated her claim that she had had dinner with her ex-husband and scolded the applicant for doubting her.  The applicant examined her telephone and saw that the deceased had deleted all messages and calls.  After showering, the applicant had sexual intercourse with the deceased at her initiative.  However, the applicant was in no mood for intimacy and it only lasted two or three minutes.  It was an admitted fact that the applicant’s semen was found on a vaginal swab taken from the deceased.

32.  Thereafter a quarrel developed concerning her behaviour towards the applicant, during which she said a number of unpleasant or hurtful things to the applicant, including that he should jump to his death if he could not stand the situation.  The applicant maintained that he then attempted three times to jump from the building, but each time the deceased grabbed him by the arm.  When he revealed that he had spoken to her ex-husband, and that was how he knew she was not telling the truth about her whereabouts the previous evening, she was furious and taunted him that all the men she had been with were more handsome and better lovers than he was.  When the applicant asked her again who had used the condom, she picked it up and thrust it at his mouth, telling him to eat it and he would not have to ask any more.  The applicant then slapped the deceased and squeezed her neck with great force for some 10 seconds.  When he let her go, she further taunted him about his former wife’s infidelity and questioned the paternity of his daughter by that marriage.

33.  On hearing this latter insult, the applicant said he became enraged.  He fetched a chopper from the kitchen and in his fury chopped the deceased randomly and “with full strength”.  When she asked him to spare her because now no one would want her in her state, he said that his mind came back to him and he stopped chopping the deceased.  He said he wanted to take her to hospital but the deceased said it would be of no use.  It was then that she confessed she had cheated on the applicant, but that she still loved him the most. The applicant described himself as in a daze when the deceased’s telephone suddenly rang.  He thought that he wanted to die but also wanted to see his daughter first.  So, he took a shower and left the premises.

34.  Of the number of chop wounds he inflicted on the deceased, the applicant said that it was not until he heard the pathologist’s evidence that he realised there were so many.  Under cross-examination, he denied any intention either to kill the deceased or to cause her really serious injury.

The issues at trial

35.  The primary issue at trial was whether the applicant was guilty of murder, as the prosecution alleged, or of manslaughter by provocation, as the defence claimed.  A further issue, which had apparently arisen from the cross-examination of the applicant as to his intent, prompted the judge to inform counsel that she also proposed to direct the jury on the alternative verdict of manslaughter by way of an unlawful act.  Prosecuting counsel agreed with the judge to this course: defence counsel, who appeared before us as junior counsel on appeal, did not demur.

The grounds of appeal against conviction

36.  Mr McCoy SC, with him Mr Donald, on behalf of the applicant has argued two grounds of appeal.  The first is that the judge “failed to direct the jury to assess the gravity of the provocation when assessing the second, objective limb of the defence of provocation, namely, whether the provocation was enough to make a reasonable man do as he did” (Ground 1).  Put perhaps more explicitly, the complaint is that the judge failed to direct the jury to assess the gravity of the provocation for the applicant, given his personal attributes and past history and relationship with the deceased, when assessing whether a reasonable man confronted with that degree of provocation might have reacted in the way that the applicant did.

37.  The second ground of appeal complains that the judge “failed to adequately direct the jury on how they may make a finding of unlawful act manslaughter on the facts of this case, and did not properly leave the alternative verdict as required in the case” (Ground 2).  As the argument was developed, it became clear that the complaint was that no direction of the alternative verdict of unlawful act manslaughter was on the facts required in this case, and that by giving an unnecessary direction in the terms that the judge gave it would have only served to confuse the jury and compromise a fair trial of the applicant.

Ground 1 – Provocation

38.  The gravamen of Mr McCoy’s complaint under the first ground is that it was never explained to the jury that the contextual background to the applicant’s relationship with the deceased as well as his personal attributes of character and circumstance were matters they must consider when assessing the gravity of the provocation to him; and that only when the jury had assessed the gravity of the provocation for the applicant could they properly determine whether a reasonable man faced with that level of provocation might have reacted in the way that the applicant did.  On the contrary, it was submitted that the overwhelming impression given to the jury by the directions in the summing-up was that the applicant’s evidence was only relevant to the factual issue of whether he had in fact been provoked to lose his self-control and that the jury were simply being asked to decide whether a reasonable man would have reacted in the same way.  Without considering how provocative the conduct was for the applicant against the contextual background of his relationship with the deceased as well as his personal attributes of character and circumstance, the jury were effectively being asked to decide an objective question in the abstract, namely, whether a reasonable man might have reacted by inflicting 213 chop wounds on the deceased.

39.  In particular, Mr McCoy suggests that the judge should have at least directed the jury to take into account the following relevant matters, which may have had an impact on the gravity of the provocation for the applicant:

(i)   that the applicant’s previous marriage had ended as a result of his wife’s infidelity;

(ii)   that the applicant’s suspicions had been building up in the months leading to his eventual confrontation with the deceased, fuelled by, among other things, his discovery of condoms on several occasions;

(iii)   that the deceased had repeatedly and falsely denied that she was having an affair as their relationship deteriorated; and

(iv)   that the applicant had a deep affection for his daughter.

Only when these matters were taken into consideration could the jury properly assess, for example, the full impact on the applicant of the deceased’s imputation that his daughter had been fathered by another man, of the continued and defiant denials by the deceased of her affair with another man (which denials were in fact untrue) in the face of a growing and compelling body of evidence that she had been unfaithful, or of the finding of yet another condom, which on this occasion was thrust into his face.

40.  Mr McCoy placed reliance, in particular, on the judgment of the majority in the High Court of Australia in Masciantonio v R (1995) 129 ALR 575 at 581:

“The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard of self-control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self-control. They are not the characteristics of the accused, although when it is appropriate to do so because of the accused’s immaturity, the ordinary person may be taken to be one of the accused’s age.

However, the gravity of the conduct said to constitute provocation must be assessed by reference to the relevant characteristics of the accused.  Conduct which might not be insulting or hurtful to one person might be extremely so to another person because of that person’s age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history.  The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done.  But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self-control and act in a manner which would encompass the accused actions.”

41.  Mr Tam, for the respondent, does not take issue with the above principle, which finds support in a number of other authorities to which we shall come in due course.  However, he rejects the notion that the jury were not properly directed on that issue.  Looking at the summing-up as a whole, he submits it is clear from its structure and its terms that the jury would have understood that they were to consider whether an ordinary person (or “reasonable man”, to use the language of section 4 of the Homicide Ordinance, Cap 339), when placed in the applicant’s circumstances and when confronted with all the provocative behaviour and conduct which had been heaped upon him both before and at the time of the killing, might have reacted as he did; and only if they were sure a reasonable man would not have reacted as he did to such provocation could they say that the applicant was not provoked in law and, accordingly, find him guilty of murder.

42.  Before considering these submissions, it is necessary to say something of the applicable law in this area of criminal jurisprudence, mindful that the highest courts of the United Kingdom have been divided on the interpretation and application of the law of provocation under the former equivalent section of the Homicide Act, 1957 in the United Kingdom and similar legislation in other jurisdictions.  In Luc Thiet Thuan v R [1997] AC 131, the Privy Council divided 3 to 1 on the issue; in R v Smith (Morgan) [2001] 1 Cr App R 31, the House of Lords divided 3 to 2; while in Attorney-General for Jersey v Holley [2005] 2 AC 580, the Privy Council divided 6 to 3.  Nevertheless, the majority judgment of Lord Goff in Luc Thiet Thuan, the majority judgment of Lord Nicholls in Holley and the minority judgment of Lord Hobhouse in Smith (Morgan) have now been approved by the unanimous decision of the Hong Kong Court of Final Appeal in Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354 and it is not necessary, therefore, to add to that debate.

43.  However, this complaint has become a recurring feature of appeals in provocation cases (this is the second case before this division in one week when exactly the same point has been taken[20]) that I consider it would be helpful to judges tasked with giving directions if we made clear what it is that must be conveyed to a jury in such cases.  The standard judicial directions on provocation may be correct as far as they go in many cases but judges should always acquaint themselves with the Notes to those directions, Note 3 of which in particular makes it clear that:

“There may be a need in a particular case to refer to the defendant’s personal history (or to an aspect of it) and/or the circumstances in which a defendant was placed at the relevant time, which history or circumstance the jury might think could have affected the gravity of the provocation upon an ordinary person of the defendant’s age and sex. See DPP v Camplin [1978] AC 705. In R v Morhall [1996] 1 AC 90; [1995] 2 Cr App R 502, the House of Lords held that any unusual characteristics should be taken into account for the ‘reasonable person’ test (under section 4 of the Ordinance) insofar as they affected the gravity of the provocation in question. It is particularly important that the judge, before final speeches are made, should discuss with counsel how he proposes to direct the jury so that counsel may be invited to comment on any further characteristics they consider should be included in the direction.”

44.  In my view, the judgment which most clearly explains and encapsulates what it is that must be conveyed to a jury in an appropriate provocation case is that of Lord Hobhouse in Smith (Morgan) at para 224 on page 104 of the Criminal Appeal Reports citation, which judges may prefer in terms of the clarity of layout to the report in the Appeal Cases, which passage was specifically endorsed by Lord Nicholls in Holley,at 594G.  Lord Hobhouse concluded that:

“The law, as provided in section 3 of the act of 1957 and held in the authorities down to Luc Thiet (Thuan), establishes that the constituents of provocation are:

(a) The defendant must have been provoked (whether by things done or by things said or by both together) to lose his self-control and kill or do whatever other act is alleged to render him guilty of murder.

(b) This is a factual question upon which all relevant evidence is admissible including any evidence which tends to support the conclusion that the defendant either may have or did not lose his self-control;

(c) If the jury conclude that the defendant may have been provoked to lose his self-control and do as he did, the jury should, as an exercise of judgment, but taking into account all the evidence, form a view as to the gravity of the provocation for the defendant in all the circumstances.

(d) Finally, the jury should decide whether in their opinion, having regard to the actual provocation ((a) and (b) above) and their view as to its gravity ((c) above), a person having ordinary powers of self-control would have done what the defendant did.”

45.  The question for us, therefore, is whether this approach has been effectively conveyed to the jury in the present case.  Mr McCoy argues it has not: Mr Tam says it has.

46.  Although Mr McCoy has put the matter as attractively as he can, there are a number of formidable obstacles in his path.  Firstly, the judge on no less than four occasions instructed the jury that they should start from the premise that the applicant was provoked into a sudden and temporary loss of self-control. She directed the jury as follows:

“On the issue of provocation, the first question is whether the accused was provoked into a sudden and temporary loss of self-control by things said and done by the deceased. The facts are for you, but the law is for me, and I have come to the conclusion, as a matter of law, that there is no evidence on which it can be safely said that the accused was not provoked into a sudden and temporary loss of self-control.

So I repeat. I have come to the conclusion, as a matter of law, that there is no evidence on which it can safely be said that the accused was not provoked into a sudden and temporary loss of self-control. So I direct you to proceed on the basis that the accused was so provoked into a sudden and temporary loss of self-control. That is a direction of law which you are bound to follow.”

A little later, she said the same thing.  Following a recitation of the evidence and towards the end of her summing-up, she then reiterated the direction:

“I have already directed you to proceed on the basis that he had been provoked into a sudden and temporary loss of self-control; but that on its own would not reduce what would otherwise be murder to the lesser offence of manslaughter.

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

47.  Applying the approach in the passage from Lord Hobhouse in Smith (Morgan), which I have set out above (at para 44), the jury were told in terms to proceed on the basis that stages (a) and (b) had been fulfilled.  Mr McCoy, however, takes issue with the judge’s usurpation of what should always have been a question of fact for the jury, which they were constitutionally bound to consider, and submits that the judge should not have converted such a question of fact for the jury into “a matter of law” for the court.  That may be correct, although I consider that the judge was probably endeavouring to assist the jury in concentrating on the real and ultimate issue in the case, which was whether the provocation was enough to make a reasonable man do as he did, in circumstances where, as she saw it, there was no evidence which could safely undermine his account that he was provoked to lose his self-control.  However, the danger of doing what the judge did could result in the jury not fully and properly considering the evidence which a defendant says provoked him to lose his self-control.  Although I would not endorse the judge’s approach, I do not believe, in view of her full recitation of the evidence, in particular that of the applicant himself, that such a result could have eventuated in this case.

48.  That brings me to the second difficulty with Mr McCoy’s argument.  The judge not only listed seriatim, during the course of her directions on the law of provocation, the aspects of provocation which were relied upon by the defence, but she returned to a fuller account of those matters, as she said she would, when she went through the evidence of the applicant.  No complaint is made about the accuracy or completeness of her summary of the applicant’s evidence concerning the provocation in question.

49.  Furthermore, and somewhat generously perhaps, the judge again directed the jury to accept the applicant’s account of that provocation.  She said as follows:

“Members of the jury, the accused denies telling any lies when interviewed, and in all the circumstances there is no basis on which you can safely conclude that he had lied as to what was said and done between him and the deceased. In respect of what was said and done between the accused and the deceased, I direct you that the only safe course is for you to proceed on the basis of the account given by him in the witness box, with such support the defence draws from what he did say when interviewed. Having so directed you, I do not need to deal with the re-examination of the accused by his own counsel save to remind you to take it fully into account as you see fit.”

The judge did go on to say that it was a matter for the jury whether they accepted the applicant’s evidence about his intent, he having denied in evidence that he intended to kill the deceased or cause her really serious bodily harm.  I shall return to this matter when I consider Ground 2, for it would appear that this was what had prompted the judge to give the additional direction in relation to unlawful act manslaughter.  However, in terms of the applicant’s evidence concerning everything that was said and done between him and the deceased in relation to provocation, the jury were explicitly directed to proceed on the basis of his account.

50.  Mr McCoy again takes issue with the judge’s right to usurp the fact-finding function of the jury, albeit with less vigour since it was plainly a direction in the applicant’s favour.  Not surprisingly, defence counsel at trial made no complaint about the direction.

51.  For his part, Mr Tam argues that having fully and correctly catalogued the deceased’s provocative behaviour and the context in which that took place as the judge did, and having directed the jury to accept what the applicant had said about it, the jury could have been under no misapprehension about the severity of the provocation for him; particularly when the jury had also been directed “as a matter of law” that the applicant had indeed been provoked to lose his self-control.  Moreover, the judge explained to the jury they should not ignore the past behaviour of the deceased “since an incident which is trivial when examined in isolation might nonetheless be one which might cause a reasonable man to react explosively in the context of provocation over an extended period”.  He submits that the jury would undoubtedly have proceeded on the basis that the applicant was severely provoked when considering whether a reasonable person might have reacted as he did to the catalogue of provocation which confronted the applicant in his particular circumstances. Indeed, he goes further and says that that is what the jury were expressly told.

52.  Which brings me to the third obstacle to Mr McCoy’s argument.  The passage which Mr Tam relies upon for his submission that that is what the jury were expressly told follows, as we have earlier seen, immediately after the last of the judge’s four directions to the jury to proceed on the basis that the applicant had been provoked into a sudden and temporary loss of self-control (supra at para 46).  The judge gave this direction:

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

53.  Mr McCoy was, with respect, somewhat coy in his submissions in confronting this passage, which seems to me to meet what he contends was the deficiency in the summing-up.  The jury were being explicitly directed to decide whether they could be sure that an ordinary person of the applicant’s age and sex, even one who had undergone all the provocation which had been meted out to the applicant before and up to the time of the killing, and even one in his particular circumstances, evidence about which they had been earlier directed to accept, would not have done what the applicant did.  Only if they considered such an ordinary person would not have reacted in the way the applicant did to such provocation would the issue of provocation be eliminated.

54.  Mr McCoy’s response was to say that elsewhere in the summing-up, and indeed immediately after this particular passage, the “ordinary person” was simply referred to as “a person who has the power of self-control to be expected of an ordinary sober person who is of the accused’s age and sex”.  However, as Lord Nicholls explained in Holley, at 591A-D:

“The objective standard of self-control is the standard set by the common law and, since 1957, by the statutory reference to a “reasonable man”. It is of general application. Inherent in the use of this prescribed standard as a uniform standard applicable to all defendants is the possibility that an individual defendant may be temperamentally unable to achieve this standard.

Taking into account the age and sex of the defendant, as mentioned in Camplin[21], is not an exception to this uniform approach. The powers of self-control possessed by ordinary people vary according to the age and, more doubtfully, their sex. These features are to be contrasted with abnormalities, that is, features not found in a person having ordinary powers of self-control. The former are relevant when identifying and applying the objective standard of self-control, the latter are not.

That Lord Diplock intended to draw this distinction in Camplin is plain from the terms of his suggested direction to a jury, quoted above. The statutory reasonable man has the power of self-control to be expected of an ordinary person of like sex and age. In other respects, that is, in respects other than power of self-control, the reasonable man shares such as the defendant’s characteristics as the jury think would affect the gravity of the provocation to the defendant. This direction, approved by the other members of the House, was clearly intended to be a model direction, of general application in cases of provocation.”

55.  Accordingly, it was correct for the judge to tell the jury, as she did, that by “ordinary person”, the law meant “a person who has the power of self-control to be expected of an ordinary sober person who is of the accused’s age and sex”[22].  But it was also correct for her to direct the jury that they could only exclude provocation if they were sure that such an ordinary person “even in the accused’s circumstances and even having undergone all the provocation which the accused told you that he had undergone at the time of the killing and leading up to it over a considerable period, would not have done what the accused did”.

56.  The summing-up must be read as a whole.  By the scheme and structure of the directions in this summing-up, as well as the basis upon which the judge directed the jury to proceed in relation to his evidence, the message was clear and the essential approach set out in stages (c) and (d) of Lord Hobhouse’s judgment was, in my judgment, sufficiently conveyed to this jury.

57.  I would add that there is no magic in the use of the word “gravity”.  What needs to be brought home to a jury is that they should consider the provocation on a particular defendant against the full background of his relationship with the deceased and in the context of any other personal attributes of character and circumstance which might have affected the impact of that provocation on him.  They must ultimately decide whether an ordinary person of the defendant’s age and sex might have reacted to that degree of provocation in the way that he did.  Since I am of the view that that message was effectively conveyed in this case, I do not accept that this ground can be made out or that the conviction is unsafe or unsatisfactory as a result.  Indeed, the directions on provocation and how the jury should approach his evidence were extremely favourable to the applicant.

58.  I should here make clear that Mr McCoy was not suggesting that there were any special “characteristics”, as that term is used in some of the authorities (for example, Camplin, at 718E; and Ho Hoi Shing, at 367I-368B), which the reasonable person must be taken to share in deciding objectively whether that reasonable person might have reacted to the provocation concerned in the way the applicant did.  Examples are given in Ho Hoi Shing of such “characteristics”, which a reasonable man may be taken to share since they are not inconsistent with reasonableness; such as a physical impediment or deformity, or something in a defendant’s background which he might be sensitive about, such as illegitimacy.[23]  Other obvious examples might be sexual orientation and ethnicity.  Rather, Mr McCoy’s argument concerned the contextual background of the applicant’s relationship with the deceased, as well as his personal attributes of character and circumstance, which should have been taken into account because they may have affected the gravity of the provocation for the applicant.

59.  In his dissenting judgment, McWalters JA has endorsed and adapted the specimen direction in the Victorian Criminal Charge Book issued by the Judicial College of Victoria in Australia, and recommended its use by judges in Hong Kong as better reflecting the approach of Lord Hobhouse in Smith (Morgan).  I have, with respect, three observations to make on this course.

60.  First, the terms of the proposed direction were unfortunately not placed before leading counsel of both parties to this appeal and we have not, therefore, had the benefit of argument as to the correctness and appropriateness of their adoption in contradistinction or preference to the standard, specimen directions approved for use in Hong Kong by the Hong Kong Judicial Institute.

61.  Of necessity, therefore, I have conducted my own researches into the law relating to provocation as it has been applied in Victoria.  Whilst I accord due deference to the specimen directions issued by the Judicial College of Victoria, I have not uncovered a single appellate authority emanating from the Court of Appeal in Victoria or the High Court of Australia dealing with the particular specimen direction on which McWalters JA has based his adaptation.  That may be because the direction was short-lived. Having been published in the Victorian Criminal Charge Book by the Judicial College of Victoria in March 2006, it was expressly intended to apply only to provocation directions in murder offences alleged to have been committed before 23 November 2005, on which date Victoria abolished the partial defence of provocation in murder cases.[24]

62.  Secondly, McWalters JA considers it necessary to refine paragraphs (c) and (d) of Lord Hobhouse’s approach because the danger of combining (c) and (d) in one direction on the objective test runs the risk of the jury not properly appreciating the importance of step (c) and the role it plays in providing subjective context in the determination of the self-control issue.  For this reason, he argues, it is important that (c) be seen as a “discrete step that must be taken before the jury goes on to determine the sufficiency of the provocation vis-à-vis the loss of self-control”.  Such a refinement was not, of course, considered necessary by the Court of Final Appeal when it endorsed Lord Nicholls’ judgment in Holley, which itself approved of Lord Hobhouse’s approach in Smith (Morgan).

63.  Nevertheless, it seems to me that structuring the directions as separate and discrete steps, as McWalters JA suggests, obliges the jury to ask itself how serious is the level of provocation (or how grave is the provocation) in a vacuum.  There is no table or scale of seriousness by which one can gauge the gravity of provocation in the abstract and, even if there were, I question how it would help the jury to say to themselves that on such a scale of gravity, the defendant scored, for example, 7 out of 10.  Equally, if the jury are to be required to ask themselves as a separate and discrete question how grave was the provocation, it hardly assists them to answer that the defendant was “quite provoked”, “very provoked” or “extremely provoked”, or any shade of meaning in between.

64.  In my view, a jury cannot sensibly resolve the issue of the gravity of the provocation to the defendant in the abstract.  The question (how provocative was the conduct for the defendant?) is inextricably bound up with the question (might a reasonable man when faced with that level of provocation have reacted as the defendant did?).  The jury should decide whether in their opinion, having regard to the actual provocation ((a) and (b) of Lord Hobhouse’s approach) and their view as to its gravity for the defendant ((c) of Lord Hobhouse’s approach), a person having ordinary powers of self-control might have done what the defendant did.  As Lord Millet, who with Lord Hobhouse also dissented in Smith (Morgan), put it, the gravity of the provocation and the requisite standard of self-control “are two sides of the same coin”.[25]

65.  My concern is that to refine Lord Hobhouse’s approach, as McWalters JA proposes, so that (c) becomes a separate and discrete step detached from (d), is unnecessary and likely to baffle the jury, prompting them to ask how they can make such an abstract assessment.  It seems to me that the objective question for the jury in provocation cases involves asking whether an ordinary person of the defendant’s age and sex (and any other characteristics with which a reasonable man may be clothed: see para 58 supra) might have reacted to the same degree or level of provocation as the defendant perceived it to be.  It ultimately requires the prosecution, if they are to disprove provocation, to satisfy the jury so that they are sure that the reasonable person, when faced with the same degree or level of provocation as the defendant perceived it to be, would not have reacted as he did.  The essence of the test is in that way a comparative evaluation between the reaction of the defendant and the response of the reasonable man.  As Lord Hobhouse put it in Smith (Morgan), the purpose of the objective or evaluative question is:

“…to provide a standard of ordinary self-control so as to compare the reaction of the defendant as he was in fact provoked to lose his self-control with the reaction of a person with ordinary powers of self-control to provocation of equal gravity.”[26]

I venture to suggest that such a comparative evaluation is unnecessarily complicated rather than enhanced by the refinement proposed.

66.  Thirdly, it should be said that even Mr McCoy was not advocating the refined approach put forward by McWalters JA; which rather exemplifies my first concern.  His submission was that the assessment of the gravity of the provocation and the application of the external standard of control, namely whether the provocation was ‘enough to make a reasonable man do as he did’, were “to be considered simultaneously”[27].  In my judgment, he was right to view it in this way.  Not only does it make sense but it accords with what I understand Lord Hobhouse to have been saying, and with Lord Nicholls’ view in Holley as to how the constituent elements of the objective or evaluative limb are applied.[28]

67.  I have digressed to voice certain concerns about the way McWalters JA would propose juries now be directed where provocation is in issue.  In my judgment, the standard, specimen directions applicable in Hong Kong are appropriate with such modifications as are catered for in the authorities referred to in the Notes to those directions.  Moreover, those directions are in conformity with what the Court in Ho Hoi Shing has already decided; and I am concerned that any further refinement to the approach helpfully set out by Lord Hobhouse will result in unnecessary confusion for juries in an area of law which, to transpose an expression from Lord Hoffmann in Smith (Morgan), is now “tolerably well settled”.[29]

68.  In any event, this divergence of opinion, such as it is, seems to me to be academic in the present case.  As McWalters JA appears to concede, the question in this case is whether the judge’s direction set out at para 52 supra sufficiently conveyed what it is that the jury had to decide.  I deem that it does.  Indeed, with respect, I cannot see what else those words could convey other than that the jury had to decide the issue of whether the provocation was enough to make a reasonable man do as he did by reference to this applicant’s personal circumstances and by reference to all the provocation he said he had undergone at the time of the killing and leading up to the killing over a considerable time.  In my judgment, that passage conveyed in simple, readily understandable terms the approach set out in (c) and (d) of Lord Hobhouse’s judgment in Smith (Morgan).

69.  For these reasons, I would reject this ground of appeal.

Ground 2 – Unlawful act manslaughter

70.  It would seem, as I have earlier indicated, that the decision to leave the alternative verdict of unlawful act manslaughter came about as a result of the applicant’s denial in evidence that he had intended to kill or cause really serious injury to the deceased.  The judge perhaps had in mind the facts of Ho Hoi Shing, where this verdict had not been left to the jury as an alternative in circumstances where the appellant had given similar evidence as to his intent at the time of the killing.[30]  Mr McCoy submits that realistically such an alternative verdict simply did not arise on the facts of this case.  Moreover, it was inconsistent with the judge’s direction that they should find “as a matter of law” that the applicant was in fact provoked to lose his self-control, a necessary and logical step in arriving at that position being that he must first have possessed the appropriate intent for murder.  He argues that at the very least the jury would have been bewildered by this direction, at worst confused, thus imperilling a fair trial of the applicant.

71.  Mr McCoy may or may not be right that this case did not call for such an alternative direction, although we have not seen the full context of the applicant’s evidence in this regard, relying instead on the judge’s recapitulation of his evidence in her summing-up.  However, as I have said, prosecuting counsel agreed with the judge’s proposed direction and defence counsel said nothing to indicate his dissent.

72.  Nevertheless, I cannot imagine that it would have made the slightest difference to the verdict or the jury’s approach to their duties in this case.  They were trying a case of murder, which was the offence identified on the indictment and the first issue they were required to address in the series of written questions they were handed by the judge when they withdrew to consider their verdicts.  In the result, they were unanimous in convicting the applicant of murder, which means that they must each have accepted that the applicant did intend either to kill or to cause grievous bodily harm to the deceased.  In those circumstances, and once they had determined his intent for the offence of murder, a consideration of the offence of unlawful act manslaughter on the basis of some lesser intent would simply never have arisen.  The only remaining issue, once they had determined that he possessed the intent necessary for the offence of murder, was whether the applicant may have been provoked in law.

73.  I cannot in those circumstances, even assuming the direction as to unlawful act manslaughter should not have been given, see how the jury could have been remotely confused or affected by the direction.  In my judgment, there is nothing whatsoever in this point.

Conclusion

74.  In the result, I would refuse the application for leave to appeal against conviction.

Hon McWalters JA:

75.  I would allow the appeal, quash the conviction and order a retrial on a fresh indictment.  I would do so because, for the reasons set out below, I find merit in the first ground of appeal.

76.  I agree with Macrae JA that the effect of the Court of Final Appeal’s decision in Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354 is to endorse the approach of Lord Hobhouse in R v Smith (Morgan) [2001] 1 Cr App R 31 which he sets out at paragraph 44 ante.  I also agree that the question this court must address in the present appeal is the question posed by him in paragraph 45, namely whether the Lord Hobhouse approach was effectively conveyed to the jury by the trial judge’s directions.

77.  It is worth repeating what Lord Hobhouse said:

“… the constituents of provocation are:

(a) The defendant must have been provoked (whether by things done or by things said or by both together) to lose his self-control and kill or do whatever other act is alleged to render him guilty of murder.

(b) This is a factual question upon which all relevant evidence is admissible including any evidence which tends to support the conclusion that the defendant either may have or did not lose his self-control.

(c) If the jury conclude that the defendant may have been provoked to lose his self-control and do as he did, the jury should, as an exercise of judgment, but taking into account all the evidence, form a view as to the gravity of the provocation for the defendant in all the circumstances.

(d) Finally, the jury should decide whether in their opinion, having regard to the actual provocation ((a) and (b) above) and their view as to its gravity ((c) above), a person having ordinary powers of self-control would have done what the defendant did.”

78.  In order to understand what it is that has to be conveyed to the jury and what is so important about Lord Hobhouse’s approach, something needs to be said about two of the steps the jury must take in accordance with this approach.

79.  Lord Hobhouse set out in four sub-paragraphs what he described as the constituents of provocation.  Though set out as four sub‑paragraphs there are in fact only three different constituents for sub-paragraphs (a) and (b) deal with the same constituent.  Each of these constituents represents a step in the thought processes of the jury by which they reach their conclusion as to whether the defence of provocation is available to the defendant.

80.  Hitherto these steps have previously been regarded as only two steps and they have been characterised as the subjective and objective limbs or aspects of provocation.  In respect of the first constituent the word “subjective” is really used in contradistinction to “objective” to indicate that a broader range of evidence, and specifically evidence relating to the defendant, is relevant to what is in reality a simple fact finding task by the jury.  This is the point made by Lord Hobhouse in sub-paragraph (b) of his constituents of provocation.  This first limb or constituent of provocation is not the subject of this ground of appeal and so I shall say no more about it.  The focus of the applicant’s first ground of appeal is the objective limb of provocation.

81.  The constituents in sub-paragraphs (c) and (d) of Lord Hobhouse’s formulation are referred to together as the objective limb with sub-paragraph (c) described by Lord Nicholls in AG v Holley [2005] 2 AC 580 as an element of the objective limb.

82.  To better understand how sub-paragraphs (c) and (d) operate in tandem in providing an answer to the objective self-control test it is necessary to say something about them.

83.  Sub-paragraph (d) represents the almost purely objective aspect of provocation.  I say “almost” because it does make concession to the age and gender of the accused, but those are the only characteristics or qualities of the accused with which the ordinary man is invested when it comes to answering the question of whether the provocation was enough to make the ordinary person do as the defendant did.

84.  The purpose of having this objective aspect of provocation is, as Lord Goff of Chieveley said in R v Morhall [1996] 1 AC 90 at 98A, “to introduce, as a matter of policy, a standard of self-control which has to be complied with if provocation is to be established in law.”

85.  In Stingel v R (1990) 97 ALR 1 at 9, lines 13-20 the Full Court of the High Court of Australia approved the following statement by Wilson J in R v Hill [1986] 1 SCR 313 at 343 as an explanation of “the rationale underlying the objective test”:

“The objective standard, therefore, may be said to exist in order to ensure that in the evaluation of the provocation defence there is no fluctuating standard of self-control against which accuseds are measured. The governing principles are those of equality and individual responsibility, so that all persons are held to the same standard notwithstanding their distinctive personality traits and varying capacities to achieve the standard.”

86.  In the later decision of Masciantonio v R [1994-1995] 183 CLR 58 the majority of the High Court of Australia said at pages 66-67:

“The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard of self‑control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self-control. They are not the characteristics of the accused, although when it is appropriate to do so because of the accused’s immaturity, the ordinary person may be taken to be one of the accused’s age.”[31] [Emphasis added]

87.  But the defence of provocation could hardly operate as a concession to human frailty if the jury were not required to take into account the impact the provocative words or conduct had on the defendant. By impact I do not mean how it caused the defendant to respond for by the time the issue of the sufficiency of the provocation is being addressed the jury has already determined that the provocative words or conduct, in fact, caused the defendant to lose his self‑control and act in the way he did.  Rather, at this stage the issue is gaining an appreciation of the impact that the provocation had on the defendant as a precursor to determining whether it was enough to make an ordinary person do as the defendant did.  This is what is described by Lord Hobhouse in his sub-paragraph (c), namely the step to be taken by the jury of forming a view as to gravity of the provocation to the defendant.

88.  This is done by having regard to any personal features of the defendant that could affect the impact that the deceased’s provocative conduct might have on him.  These personal features of a defendant have often been described as “characteristics”.  However in AG v Holley Lord Nicholls discouraged the use of the word “characteristics” in describing relevant aspects of the defendant for such a word may confuse courts and juries and mislead them into limiting the subjective aspects of the defendant that may be relevant to the jury’s assessment of the gravity of the provocation to him.  In reality there is no limitation at all and relevant aspects can include ethnicity, physical deformities, mental abnormalities, sexual preferences, addictions, criminal past, relationship history and life experiences generally.

89.  By having regard to these subjective aspects of the defendant the provocation is “put into context” as the High Court of Australia described it in Masciantonio.[32] The potential breadth of that context was described by the High Court in Stingel at page 10 as follows:

“Even more important, the content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused. Were it otherwise, it would be quite impossible to identify the gravity of the particular provocation. In that regard, none of the attributes or characteristics of a particular accused will be necessarily irrelevant to an assessment of the content and extent of the provocation involved in the relevant conduct. For example, any one or more of the accused’s age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant to an objective assessment of the gravity of a particular wrongful act or insult. Indeed, even mental instability or weakness of an accused could, in some circumstances, itself be a relevant consideration to be taken into account in the determination of the content and implications of particular conduct. For example, it may be of critical importance to an assessment of the gravity of the last of a series of repeated insults suggesting that the person to whom they are addressed is ‘mad’ to know that that person has, and understands that he has, a history of mental illness. As Wilson J commented in Hill (SCR at 346-7; CCC at 347), the ‘objective standard and its underlying principles of equality and individual responsibility are not … undermined when such factors are taken into account only for the purpose of putting the provocative insult into context’.”

90.  However these features of the defendant may be described, whether as characteristics, attributes or some other term, their relevance lies in the fact that they bear upon the gravity of the provocation to the defendant – on the impact that it would have had on him – for the greater the sting to the defendant, the more explicable may be his reaction and, potentially, the more likely the jury might find the provocation sufficient to excuse his loss of self-control.

91.  The self-control test looks to the sufficiency of the provocation, that is “whether the provocation was enough to make a reasonable man do as he [the defendant] did”.[33] As Lord Hobhouse explains in his sub-paragraph (d), the jury determines this question by having regard to not just the actual provocation (his sub-paragraphs (a) and (b)) but also to its view on the gravity of that provocation to the defendant (his sub-paragraph (c)).  In this way the view the jury forms of the gravity of the provocation to the defendant is inextricably bound up in the application by the jury of the objective self‑control test.

92.  However, by combining Lord Hobhouse’s sub-paragraphs (c) and (d) into one direction on the objective test the risk is created that the importance of sub‑paragraph (c) may not be properly appreciated and the role it plays in providing subjective context in the determination of the self‑control issue with which sub-paragraph (d) is concerned may not be properly brought home to the jury.  For this reason it is important that this task of the jury is seen as a discrete step that must be taken before the jury goes on to determine the sufficiency of the provocation vis-à-vis the loss of self-control.  If they do not take this step separately from the final step then their determination of the issue of self‑control may be at risk of being flawed by not taking full account of the context.

93.  In some cases it may be that there is no attribute of a defendant that impacts on the gravity of the provocation to him.  In that case the third step of forming a view of the gravity to the defendant of the provocation may be limited to the evidence of the actual provocation.  But because it is necessary for the jury to act on the view it has formed of the gravity of the provocation in order to determine the issue of self‑control, it is a step which still should always be taken separately from, and prior to, the final step even if, vis-à-vis the defendant, the conclusion of the jury is that the provocation had no greater impact on the defendant than it would have had on the ordinary person.

94.  Concern at the adequacy of the current direction on the second limb of provocation prompted me to enquire into how conveying the elements of the second limb has been addressed in other jurisdictions.  I first went to the English Crown Court Bench Book and in the course of the hearing of the appeal I provided a copy to the parties of its specimen direction the relevant part of which is as follows:

“Who is the reasonable person for this purpose? He is a person of the same age and gender as the defendant. He is therefore a man of 23 years. He is a person having the powers of self control which you would expect of an ordinary, sober person … The reasonable person is someone with the defendant’s characteristics. He is therefore a person who [set out the characteristics]. That may well affect the gravity of the provocation for this defendant and is something you need to consider when judging the response of a person with ordinary powers of self control.”

95.  This, it seemed to me, was an improvement on our own direction, in that it specifically identified the issue of the gravity of the provocation to the defendant as something the jury should address in the course of determining the second limb.  Seeing how the English implemented the Lord Hobhouse elements made me curious as to how the Australian states who had the same law, might have approached this issue.  In this way I came to look further afield on this issue and my enquiries took me to the Criminal Charge Book issued by the Judicial College of Victoria in Australia which State had the defence of provocation in its common law form and whose law was based upon the High Court decisions of Masciantonio[34] and Stingel.

The Objective Element of Provocation

This element is concerned with the question of whether the provocation was enough to make an ordinary and sober person of the defendant’s age and sex to lose self-control and act in the way the defendant did.  This reflects the minimum standard of self-control the law requires of us all.

There are two stages to determining whether the ordinary person might have lost self-control and acted in the way the defendant did.  First, you must assess the gravity or seriousness of the provocation to the defendant.  Then you need to determine whether provocation of that gravity or seriousness might have caused an ordinary person to lose self-control and act like the defendant.

(1) The Gravity of the Provocation

The law says that you must assess the gravity or seriousness of the deceased’s conduct from the viewpoint of the defendant. That is, you have to take into account the defendant’s personal characteristics and circumstances, such as his/her age, sex and race, when determining how grave that conduct was.  This is because conduct which might not be insulting or hurtful to one person might be extremely insulting or hurtful to another because of such matters.

In this case, the characteristics and circumstances that you must take into account when assessing the gravity of the deceased’s conduct include [insert details of the defendant’s relevant characteristics and circumstances, such as his/her age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history.  Identifying these characteristics and circumstances is a task the judge should undertake in consultation with counsel.]

The Ordinary Person

Having assessed the gravity of the deceased’s conduct, you must then determine whether provocation of that gravity might have caused an ordinary and sober person of the defendant’s age and sex to lose self-control and act in the way the defendant did.  The ordinary person in this context is a person who is not exceptionally excitable or given to violence, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today.

A direction formulated along these lines in my view better reflects the Lord Hobhouse approach and avoids any of the problems inherent in a direction that combines the two steps represented by Lord Hobhouse’s constituents as set out in his sub‑paragraphs (c) and (d).

96.  I should emphasise that I am not seeking to in any way alter the existing law; merely suggesting how greater clarity and simplicity might be achieved in conveying that law to a lay jury and as the legal issue relates to a defence how greater fairness might be achieved for the defendant by bringing together for the jury the evidence on which the defence relies. For, where a legal direction relates to a defence being advanced then, in my view, fairness dictates that the jury is reminded of the evidence relevant to that defence and has explained to them how the defendant says that evidence is relevant to his defence.

97.  In the present case the judge said:

“If you feel sure that an ordinary person of his age and sex, even in the accused’s circumstances and even having undergone all the provocation which the accused told you that he had undergone at the time of the killing and leading up to it over a considerable period would not have done what the accused did, then the doctrine of provocation would not operate to reduce murder to manslaughter.”

98.  It seems to me that a general and unfocused direction to take into account all the circumstances, such as was given here, creates a number of risks.  They are:

(i) when the jury comes to applying the objective test of self‑control they might wrongly invest the ordinary person with qualities of the defendant;

(ii) they might not specifically address the issue of what was the gravity of the provocation; and

(iii) even if they do address the gravity of the provocation they may only do so in a general way and not from the viewpoint of the defendant, taking into account the particular features of him or his background which affect the gravity of the provocation to him.

99.  It is the last-mentioned risk that is of greatest concern to me as it is the risk that has the strongest likelihood of eventuating.  I say this because unless the jury are specifically directed that one of the issues they have to consider is the gravity of the provocation to the defendant they will not necessarily approach their consideration of the evidence with this issue in mind.  Indeed I would go so far as to suggest that it is most unlikely that the jury would properly address this issue as it is not just a separate issue from that of the gravity of the actual provocation, it also requires for its consideration that regard be had to particular evidence with that evidence being analysed from a particular viewpoint. Consequently, the jury need to be directed what the issue is and informed what evidence they might consider relevant to it and how that evidence is relevant to it.  Directing the jury on this issue and informing them of these evidential matters is the responsibility of the judge when summing up on the defence.

100.  The direction of the judge that is quoted above certainly tells the jury to take into account all that the deceased did to provoke the applicant; the actual provocation as set out in Lord Hobhouse’s sub‑paragraphs (a) and (b).  But it does not tell them that they must form a view of the gravity or seriousness or impact of that provocation to the applicant and that in doing so they must also take into account features of the applicant’s past history.  Nor is there any explanation of how the applicant’s past history could exacerbate the impact of the provocation to him.

101.  In the present case there were matters in the applicant’s past history and his present make-up that were relevant to the gravity of the provocation to him.  They were that his marriage had ended as a result of his wife’s infidelity and that he had a deep love for his daughter. The taunts as to his ability to sexually satisfy a woman and as to the paternity of his daughter might have borne a greater sting for him and had a more serious impact on him than they might have on a person who did not have his history. Without the judge directing the jury to form a view of the gravity of the provocation to the applicant and in doing so to have regard to this evidence for this purpose, I am not convinced that the jury would have properly determined the objective limb of provocation in accordance with Lord Hobhouse’s approach.

102.  For these reasons I am not persuaded that the jury’s determination that the defence of provocation was not available to the applicant can be relied upon so as to enable me to say that applicant’s conviction for murder is safe.

Hon Lunn VP:

103.  Accordingly, by a majority the application for leave to appeal against conviction is refused.