HKSAR v. PANG KAM CHUEN

CACC 117/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 117 OF 2003

(ON APPEAL FROM HCCC 99 OF 2002)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1. At the commencement of the summing up, Jackson J gave the jury a most helpful summary of the evidence and the issues in the trial of the Applicant on a charge of murder. This included an account as to how, shortly after the killing on 8 December 2001, the matter had been brought to the attention of the police by the Applicant when he went to Sham Shui Po Police Station to confess to the first police officer he found there that he had killed a woman (the deceased) with an axe. He went on to say: "That woman always opposes me, I've warned her many times but she keeps opposing me. Not being able to tolerate it any longer I chopped her with an axe today and I've now come to surrender. I admit having chopped her, I have lost patience with her."

2. In a further development, police and ambulancemen had gone to the scene of the crime at 206 Apliu Street in Sham Shui Po, as the result of a telephone call from a neighbour. There, they found the deceased who was unconscious and seriously injured. There were pools of blood and, on the floor nearby, there was a blood-stained axe. The deceased was taken to the Caritas Medical Centre where she died a short time afterwards. An autopsy revealed that she had suffered, amongst other injuries, three heavy chop wounds to the head. Underlying these wounds, there were severe fractures of the skull and associated injuries to the brain which would, according to the pathologist, have inevitably led to death.

3. The deceased and the Applicant had been living in a flat at 206 Apliu Street which was divided into a number of rooms with shared facilities.

4. At trial, it was not disputed that the Applicant had killed the deceased with an axe. He pleaded guilty to manslaughter. The principal issue was whether the Applicant, if the prosecution could prove that he intended to kill the deceased or to cause her really serious harm, had acted under provocation.

5. On 14 March 2003, the Applicant was convicted of murder after trial. He now seeks leave to appeal against conviction.

Prosecution's case

6. The majority of the evidence at the trial was not disputed. The evidence of the main witnesses, which included the landlord and other occupiers of the premises, the police officers who took part in the investigation, the doctor who examined the deceased and the pathologist who conducted the autopsy, was succinctly summarised for the jury by the judge. Importantly, evidence was given by one of the neighbours who confirmed that in the past there had been disharmony between the Applicant and the deceased. This took the form of arguments over the use of the shared kitchen facilities.

7. No one saw the Applicant attack the deceased and nobody appears to have heard the sounds of an altercation immediately beforehand. The prosecution case was that, given the admissions made by the Applicant and the nature and extent of the injuries suffered by the deceased, there could be little doubt that the elements of the offence of murder had been established.

8. On the issue related to provocation, it was the prosecution's case that even if the jury were prepared to accept the Applicant's account about what had taken place between him and the deceased, there was insufficient material to have amounted, in law, to such a defence. In his detailed version in interview, the Applicant stated that a piece of cardboard which he used as a mat had been made wet by the deceased and that she was washing up bowls in the kitchen in a space which she was not supposed to use. He went on to say that the deceased kept "murmuring, scolding". Then, he told police, he went to his room on a sudden impulse to get his axe. He said he was "impetuous" because he was "furious". His first blow to the deceased's "upper part" was while she had her back to the Applicant. She tried to ward him off but he "chopped her several more times" and she fell to the ground.

Defence case

9. The Applicant gave evidence that he had come to Hong Kong in 1973 where he had no family or friends. He was a loner who had been unemployed since about 1993 and was in receipt of social welfare allowances. He had been a street sleeper for some years before finding a bed space in cramped accommodation, shared by about forty others, in Pei Ho Street. He remained there for about six months before moving to the premises in Apliu Street. He said that when he was at Pei Ho Street, he had feared for his safety and, as a consequence, he had purchased the axe which he had then taken with him when he moved to Apliu Street.

10. The gist of the Applicant's evidence about his relationship with the deceased was that, almost from the time that he arrived at Apliu Street, she had, by various means, deliberately set out to annoy and inconvenience him. His expression was that she "played tricks" on him. There were occasions, according to him, when the deceased would annoy him by turning up the volume of her radio and she would wash her clothes in the kitchen when he was trying to get to sleep. He said that he spoke to her about these matters but she would either completely ignore him or respond "fiercely".

11. The Applicant said that there were occasions when the deceased spoke loudly on the telephone, either when he had been sleeping or when he was trying to get to sleep. The deceased would occasionally make sarcastic remarks to him about being "good for nothing" because, rather than working, he was spending all his time gambling and eating.

12. As to the use of the kitchen, which was shared by several occupiers of the premises, the Applicant said that when he went to prepare something to eat, it seemed to him that the deceased made a point of being in the kitchen at the same time. She did that even when he changed his routine to avoid her. He said that on one occasion, after they had had a heated exchange of words, they had both returned to their respective rooms when one of the other residents came to see what the noise was about. The Applicant said that such incidents did not happen every day, but that when they did occur he was made to feel very angry. He agreed that he easily lost his temper.

13. Turning to the events on 8 December 2001 on which the defence heavily, although not exclusively, relied for the defence of provocation, the Applicant said that he was in a bad mood that day because, amongst other things, he was waiting for his public assistance payments. He said that when he went to the kitchen between 5.30 and 6 p.m., he saw that the cardboard mat, on which he would put bowls and pots, was wet. That made him really angry and he asked the deceased why she had done this. She responded by swearing at him and saying that she would telephone to arrange for some people to come. The Applicant went on to say that he was then both angry and afraid and, having stood for a moment in the doorway of his room, being unsure what to do, he suddenly seemed to be out of control. His mind went blank and he could not think. He picked up the axe and rushed into the kitchen, not caring about anything. He struck the deceased with the axe a few times.

14. The Applicant maintained that, being out of control, he did not intend to kill or to cause the deceased grievous bodily harm.

The application

Ground 1 - provocation

15. Two grounds of appeal were advanced on the Applicant's behalf by Mr Whitehouse. Firstly, he submitted that the trial judge had not adequately directed the jury in respect of the Applicant's defence of provocation, in particular in regard to the objective 'reasonable man' test.

16. Section 4 of the Homicide Ordinance, Cap. 339, makes provision for the statutory defence of provocation in the following terms:

"Where 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." (Emphasis added)

17. The relevant directions on provocation which the judge gave were as follows:

"Provocation is some act or series of acts done and/or words spoken which caused in the defendant a sudden and temporary loss of self-control, and which would cause a reasonable person to lose his or her self-control and to behave as the defendant did. Although provocation, which reduces murder to manslaughter, applies only if the act of the defendant is committed suddenly upon a provoking event, that does not require you to ignore past behaviour by 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.

There are two questions which you will have to consider before you are entitled to conclude that the defendant was or may have been provoked. Firstly, may the deceased's conduct on or before 8 December 2001, that is things she did or things she said or both, have provoked, that is caused, the defendant suddenly and temporarily to lose his self-control? If you are sure that the answer to that question is, 'no', then the prosecution will have disproved provocation. Provided that the prosecution has made you sure of the ingredients of the offence of murder to which I have referred, your verdict will be guilty of murder.

If, however, your answer to that question is, 'yes', you must go on to consider the second question. Which is this, may that conduct of the deceased have been such as to cause a reasonable and sober person of the defendant's age and sex to do as he did? A reasonable person is simply a person who has that degree of self-control which is to be expected of the ordinary citizen who is sober and who is of the defendant's age and sex. When considering the second question you must take into account everything which was done and/or said, according to the effect which in your opinion it would have on that ordinary person.

If you are sure that the answer to the second question is, 'no', then the prosecution will have disproved provocation. Provided that the prosecution has made you sure of the ingredients of the offence of murder to which I have referred, your verdict will be guilty of murder.

If, however, your answer to the second question is, 'yes', and albeit that the prosecution has made you sure of the ingredients of the offence of murder to which I have referred, your verdict will be not guilty of murder but guilty of manslaughter by reason of provocation.

Members of the jury, in considering all of those matters you will, of course, have to consider the evidence that is before you which, if you accept it, suggests that the defendant was or might have been provoked. I will remind you in some detail of that evidence later on, but for the moment suffice it to say that there is evidence, is there not, from what the defendant told the police and from what he has told you, that the deceased went out of her way to irritate or annoy the defendant, that they quarrelled about that, and there came a time when the defendant could not tolerate her behaviour any longer. He just snapped, he lost his self-control and he killed her." (Appeal bundle pp.11-12) (Emphasis added)

18. A little later, the judge went on to say:

"The point, members of the jury, is not whether the defendant felt himself to be provoked into killing the deceased. If you accept his evidence, or part of it, he may very well have felt that, he may have felt provoked. That is not the point. The point for you to decide is whether the deceased behaved towards him in the way that he has described, and if so whether such conduct may have been such as to cause a reasonable and sober person of the defendant's age and sex to react as he did. That is the question for you. Because if after due deliberation you believe that was or may have been the case, then you will find the defendant not guilty of murder but guilty of manslaughter by reason of provocation." (Appeal bundle p. 13) (Emphasis added)

19. Mr Whitehouse described provocation (as opposed to lack of intent) as the Applicant's only "real" defence but he said that, while the judge's summing up was "very fair", the directions to the jury dealing with the objective element of provocation had, inadvertently, failed to go far enough. This was because, although the judge had explained to the jury that a "reasonable person" was someone having that "degree of control which is to be expected of the ordinary citizen who is sober and who is of the defendant's age and sex", he did not add the words of explanation (adopted in Luc Thiet Thuan v R [1997] AC 131 at 140 taken from DPP v Camplin [1978] AC 705; [1978] 2 WLR 679):

"..... but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him; .... the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but also whether he would react to the provocation as the accused did." (Emphasis added)

20. As Mr Saw, SC, on behalf of the Respondent, rightly pointed out in his response, such a direction may give rise to confusion if it is routinely stated as a rigid formula in every case. There must, he submitted, be circumstances or some characteristic, relevant to the issue of provocation, which the jury can properly take into account when assessing the gravity of the provocation.

21. Mr Saw reminded us that in DPP v Camplin, the focus of concern was whether the 15-year-old respondent's age should be taken into account when the 'reasonable man' test was applied to the facts of his case. Lord Diplock, giving judgment in the House of Lords, gave examples of characteristics which might properly be considered by the jury in such a context. The relevant passage in DPP v Camplin is again set out in Luc Thiet Thuan v R (above), at page 139, as follows:

"..... for the purposes of the law of provocation, the 'reasonable man' has never been confined to the adult male. It means an ordinary person of either sex, not exceptionally excitable or pugnacious, 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 crucial factor in the defence of provocation from earliest times has been the relationship between the gravity of provocation and the way in which the accused retaliated, both being judged by the social standards of the day..... But now that the law has been changed so as to permit of words being treated as provocation even though unaccompanied by any other acts, the gravity of [the] verbal provocation may well depend upon the particular characteristics or circumstances of the person to whom a taunt or insult is addressed. To taunt a person because of his race, his physical infirmities or some shameful incident in his past may well be considered by the jury to be more offensive to the person addressed, however equable his temperament, if the facts on which the taunt is founded are true than it would be if they were not. It would stultify much of the mitigation of the previous harshness of the common law in ruling out verbal provocation as capable of reducing murder to manslaughter if the jury could not take into consideration all those factors which in their opinion would affect the gravity of taunts or insults when applied to the person [to] whom they are addressed." (Emphasis added)

22. Returning to the present case, if there was one characteristic which could be said to apply to the Applicant over and above the fact that he was a man aged 51, this was that he described himself as someone with a short temper. This, however, is not a characteristic which would enable the Applicant, or anyone else for that matter, to escape conviction for murder on the basis of provocation. In Luc Thiet Thuan v R (at page 139), Lord Goff of Chieveley, delivering the majority judgment of the Privy Council, when confirming the observations of Lord Diplock in DPP v Camplin, stated that the public policy underlying the adoption of the 'reasonable man' test in the common law doctrine of provocation was:

"..... to reduce the incidence of fatal violence by preventing a person relying upon his own exceptional pugnacity or excitability as an excuse for loss of self-control."

23. The Privy Council, in the same appeal (at pages 140-141), adopted the approach recommended in Professor A.J. Ashworth's article, "The Doctrine of Provocation" [1976] CLJ 292 that:

"The proper distinction .... is that individual peculiarities which bear on the gravity of the provocation should be taken into account, whereas individual peculiarities bearing on the accused's level of self-control should not."

24. In the present case, as Mr Whitehouse accepted, there were no identifiable characteristics which bore upon the gravity of the provocation and, as such, the judge's directions to the jury were quite sufficient up to this point.

25. The important question which remained to be answered was whether the judge had made it sufficiently plain to the jury that the Applicant's particular circumstances were relevant to their consideration of the gravity of the deceased's allegedly provoking conduct. Mr Whitehouse submitted that the jury would have had to be satisfied that a reasonable man "in the Applicant's position" would have acted as he did. By this, he was referring to the cramped accommodation in which the Applicant was living, taken together with the cumulative effect of the deceased's ongoing provocative behaviour which the Applicant had allegedly endured over a period of time. It was submitted that these factors, which had to be taken into account when considering the gravity of the provocation to the Applicant, and when applying the 'reasonable man' test to him, had not sufficiently been brought to the attention of the jury as being relevant to their determination of that issue.

26. Mr Saw's reply was that it was manifestly clear, looking at the summing up as a whole, that the jury were being invited to consider whether the deceased's behaviour amounted to provocation in the context of all the prevailing circumstances. He emphasised, however, that the provocation, in order to have amounted to a defence under section 4 of the Homicide Ordinance, must have arisen from either words or deeds or the combination of both, so that cramped or even squalid living conditions would in themselves be insufficient to support a defence of provocation. Mr Saw submitted that the jury would inevitably have examined the gravity of the provocation within the factual matrix presented to them. He illustrated his contention by taking various passages from the summing up, including some of those to which we have referred already, namely:

"Although provocation which reduces murder to manslaughter applies only if the act of the defendant is committed suddenly upon a provoking event, that does not require you to ignore past behaviour by 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." (Appeal bundle p. 11)

27. This passage formed part of the judge's comprehensive directions about provocation which we cited earlier. A little later he went on to say:

"Members of the jury, in considering all of those matters you will, of course, have to consider the evidence that is before you, which if you accept it suggests that the defendant was or might have been provoked. I will remind you in some detail of that evidence later on, but for the moment suffice it to say that there is evidence, is there not, from what the defendant told the police and from what he has told you, that the deceased went out of her way to irritate or annoy the defendant, that they quarrelled about that, and there came a time when the defendant could not tolerate her behaviour any longer. He just snapped, he lost his self-control and he killed her." (Appeal bundle p. 12)

28. After this, the jury were reminded of the evidence of two witnesses who had been able to confirm earlier altercations between the Applicant and the deceased. Later, when the judge reminded the jury about the Applicant's evidence about the deceased's conduct towards him, he said:

".... you will recall that he told you that when she first moved into the premises he had a few conversations with her, as he wished things to be, as he said, harmonious. But, again so he said, she began to trick him. When asked to explain what he meant by that, he then told you that there were occasions when the deceased would turn up the volume of her radio, and when she would wash her clothes in the kitchen when he was trying to get to sleep. He said that he spoke to her about that but she would either completely ignore him or respond fiercely to him.

He also told you of an occasion when the deceased spoke loudly on the telephone, either when he was asleep or when he was trying to get to sleep. He went on to say that the deceased would occasionally make sarcastic remarks to him about being 'good for nothing', about not working and only gambling and eating. He said that those matters were none of her business, and he assumed she said such things to hurt him and perhaps to persuade him to leave the premises.

As to the use of the kitchen, the defendant told you that when he went to prepare his food it seemed to him that the deceased made a point of being in the kitchen at the same time. She did that even if he changed his routine, which is what he did. He said that on one occasion they had exchanged heated words about that, but that came to nothing and they both returned to their respective rooms when one of the other residents on the 1st floor came to see what the noise was about. The defendant told you that those incidents did not happen every day, but that when they did happen he told you he was very angry, although he managed to calm himself down and put them, as he said, out of his mind. He did agree that he easily lost his temper." (Appeal bundle pp. 25-26)

29. Against this background, the judge turned to the specific incident on 8 December 2001 which it was alleged by the Applicant had given rise to provocation, saying:

".... you will recall that the defendant told you that he was in a bad mood that day because among other things he was waiting for his public assistance payments. He said that he went to the kitchen between 5.30 and 6.00 pm and saw that the piece of cardboard, which he used as a coaster or mat or tray, was wet. That made him really angry. He asked the deceased why she had done that. She responded, he said, by swearing at him and saying that she would telephone to arrange for some people to come. The defendant went on to say that he was then both angry and afraid, and having stood for a moment in the doorway of his room, unsure what to do, he suddenly, so he said, seemed to be out of control. His mind went blank and he could not think, and he picked up the axe and rushed into the kitchen, not caring about anything. He struck the deceased with the axe a few times." (Appeal bundle pp. 26-27)

30. The judge, in our opinion, reminded the jury of every piece of evidence of any importance which was capable of affecting the gravity of the provocation. In arriving at this conclusion, we were mindful of Lord Goff's speech in R v Morhall [1996] 1 AC 90, although this was a case with a very different factual context from the present, where, at page 98F-G, he said:

".... in an appropriate case, it may be necessary to refer to other circumstances affecting the gravity of the provocation to the defendant which do not strictly fall within the description 'characteristics', as for example the defendant's history or the circumstances in which he is placed at the relevant time (see R v Camplin, at p. 717C-D, per Lord Diplock, where he referred to 'the particular characteristics or circumstances' of the defendant, and at p. 727D, per Lord Simon of Glaisdale, who referred to 'the entire factual situation', including the characteristics of the defendant.)"

In all the circumstances in the present case, as nothing which might have affected the gravity of the provocation was omitted from the jury's consideration, this ground inevitably fails.

Ground 2 - lies

31. In his second ground of appeal, Mr Whitehouse submitted that the directions which the judge gave to the jury in relation to the "possible lies allegedly told by the (Applicant) in court" were unnecessary, resulting in prejudice to the defence case. In any event, he argued, even if a 'lies' direction had been necessary, the limited directions which were given did not go far enough.

32. We do not need to dwell at any length on this ground. Mr Whitehouse conceded that a full 'Lucas' direction was strictly unnecessary. In this regard, he was obviously right. The possibility of lies had only been raised by the prosecutor when alleging that the Applicant had been lying in the course of his evidence.

33. Mr Whitehouse contended, however, that the 'lies' direction given by the judge may, by virtue of the fact that it was given, have caused the jury to be left with the impression that the judge thought that the Applicant had been lying. He contended, therefore, that if some direction was needed, it should have been dealt with in full, as set out in R v Lucas [1981] 73 Cr App R 159; [1981] 1 QB 720.

34. It is plain from the directions given by Jackson J that the jury could not have been left with the impression suggested by Mr Whitehouse. The judge specifically told the jury that it was for them alone to decide what evidence they accepted. This was later followed by the judge's directions as to the approach to be taken to lies which may possibly have been told by the Applicant. He said:

"Another matter of law that I wish to direct you upon is this, during the course of his cross-examination of the defendant you will recall that Mr Hemmings for the prosecution suggested to him that he had made up part of his evidence to you. In other words, that he had lied to you about that matter, specifically in the detail which he provided concerning the events of 8 December and the conduct of the deceased beforehand, some of which he had not told the police when he was interviewed by them. For example, about the deceased telling him that she would telephone some people to come to the premises. Mr Hemmings also suggested to the defendant that his account to you about not knowing what he was doing when he attacked the deceased with the axe was untrue.

Now, the defendant denied that that was so. Whether or not, members of the jury, the defendant has told lies is a matter for you as the judges of the facts in this case. I must tell you this, the mere fact that a defendant tells a lie is not itself evidence of guilt. People sometimes lie for reasons other than that they are guilty. Sometimes people lie to bolster or to improve upon a true defence, to protect others, or because they believe that the true story is unlikely to be believed so they make one up which they believe sounds more convincing, all sorts of reasons of that kind.

Now, members of the jury, if you find that the defendant in this case has lied, and that the lie may have been for one of the reasons that I have suggested, then pay no attention to that lie, simply disregard the evidence which you find to be untruthful and concentrate on the evidence which the prosecution has satisfied you is true and on that part of the defence evidence which you find to be true or which you find may be true." (Appeal bundle pp. 17-18)

35. If the Applicant had lied at all, it could only have related to his own account about the deceased's conduct towards him on which the defence of provocation was founded. In such circumstances, Mr Saw submitted that the judge's directions had been sufficient. He reminded us of a passage, of relevance to the present situation, in R v Ng Chi-wai & Anor, CACC 346/96 where Mortimer JA (at page 5) said:

"The circumstances in which a proven and material lie can support the prosecution case are rare. As this Court has said on many previous occasions allegations of lying arise in almost every criminal case. Those allegations almost always relate to credibility and not proof of guilt. It is important to recognise that lying in a general way is not proof of guilt. Lying is relevant only to credibility. If there is the danger that the jury will be misled into thinking that lying goes to proof of guilt, the usual warning that accused persons may lie for reasons other than guilt and such lies do not prove guilt is necessary. Where there is a clear factual issue on guilt for the jury's consideration, a direction that a lie may support the prosecution case will hardly ever be appropriate."

36. This was a case where lies, if they were told, related purely and simply to credibility. The directions given were ample and this ground fails.

Conclusion

37. The application is dismissed.