R. v. LAI HON MAN

IN THE COURT OF APPEAL

1992, No. 421
(Criminal)

H E A D N O T E

CRIMINAL LAW - MURDER

1. When the issue of provocation is raised the Judge should give a clear and easily understood direction on the burden of disproving provocation remaining on the prosecution.

2. Even if the provoking conduct appears to be self-induced, there must still be a direction on provocation. R. v. Leung Ka Fai (No. 228 of 1991) re-affirmed and Edwards v. R. [1973] AC 648 not followed.

3. A direction on good character must always be given, but whether the second limb of a 'Berrada' direction should be given depends on the relevance of propensity to the crime charged. R. v. Berrada [1989] 91 Cr. App. R. 131; R. v. Vye & Ors [1993] 1 WLR 471 not followed.

4. Prosecuting counsel is under a duty to remind the Judge of non-directions and to correct him on misdirections.

In the Court of Appeal

1992, No. 421
(Criminal)

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J U D G M E N T

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Sears J. (Giving the Judgment of the Court)

1. On 29th April we gave the applicant leave to appeal against his conviction and quashed it. We said we would give our reasons for so doing.

2. Lai Hon-man was convicted of murder after trial before Gall J. and a jury on 23rd September 1992. The jury had deliberated for nearly 7 hours. He now applies for leave to appeal against that conviction.

3. The facts were that on 9th April 1991 the applicant had visited the deceased, who was his friend. He noticed the deceased's wallet in the flat and he stole a Moneylink Card from it.

4. That evening and early the next morning he used the card to withdraw $9,000 from an ETC machine. On the next day, the deceased telephoned him and asked him to come to the flat. The applicant took with him a long piece of loudspeaker cable as he thought the deceased sounded fierce and he could tie him up if the deceased started to beat him. On arrival at the flat, the deceased accused him of stealing the card, and according to the applicant he was punched several times. They started to fight and the applicant wound the cable around the upper arms of the deceased. In the course of the struggle the cable went round the deceased's neck. The applicant said that the deceased kicked him in the lower stomach; he then lost control and strangled the deceased.

5. The applicant fled to China and tried to commit suicide. He was arrested at Hung Hom Station in June 1991. Later, he made a cautioned statement admitting that he had strangled the deceased after a fight.

6. The only issues for the jury were first, whether the applicant intended to kill when he pulled the cable hard around the neck, and secondly whether he was provoked by the conduct of the deceased.

7. As to the first issue the evidence of the applicant was an admission to manslaughter at any rate. The Judge did not deal with this alternative verdict, but directed the jury on intent. Nothing turns on this aspect of the case, but we wish to emphasise it was the Judge's duty to tell the jury about manslaughter and what it involved.

8. The second issue is the important one in this application. It was clear from the applicant's evidence that he was asserting that he had lost control by reason of the deceased's kicks or blows.

9. It is important in a murder trial when the issues of provocation or self-defence are raised for the Judge to give succinct and clear directions on the law. There are a number of standard directions which assist both the Judge in explaining the law and the jury in following it. If the Judge wishes to depart from these he must ensure that he still gets the law right. Home- made directions may relieve the monotony of summings-up, but they are liable to lead to error, subsequent appeals and additional strain on Court time.

10. The most frequent cause of appeal in both self-defence and provocation cases is an improper or inadequate direction on the burden of proof. The Judge told the jury that the case for the accused was that he did kill the deceased and "I remind you that the accused need prove nothing". He gave the jury a correct direction on the meaning of provocation but when turning to the vital matter of proof said:

" If you find that all the elements of murder are proved by the Crown so that you are sure that they are true, you will convict of murder unless you find there is evidence that you are sure is true upon which, applying the test that I have given you, the conviction can be reduced to one of manslaughter. If you are sure that the elements of murder are proved and do not believe the evidence of provocation to which the accused points to be true or find that the evidence be true but not sufficient to pass the test of manslaughter, then you will convict of murder."

11. This is a serious misdirection. Not only is it putting the burden of proof on the applicant to establish that he was provoked, but at a standard so the jury are sure about it.

12. The standard direction is both simple and easily understood. We can see no good reason for departing from it.

" Because the prosecution must prove the defendant's guilt, it is not for the defendant to prove that he was provoked. The prosecution must make you sure that the defendant was not so provoked, before you can convict him of murder. If you are satisfied that he was provoked, or if you think that he may have been provoked, then you can only convict him of manslaughter."

13. The evidence of provocation in this trial was weak and the Judge was entitled to make strong comment on it, but once it is raised it is his duty to give correct directions in law.

14. Before leaving this ground of appeal, we wish to point out that, although the evidence would indicate that the provoking conduct was in reality induced by the act of the applicant in wrapping the cable around the deceased's neck, it is still the duty of the Judge to give a direction on provocation. In R. v. Leung Ka Fai (No. 228 of 1991) we advised trial judges that they should direct juries in accordance with R. v. Johnson [1989] 89 Cr. App. R 148 that a defendant was entitled to rely on the predictable results of his own conduct as constituting provocation sufficient to reduce the crime from murder to manslaughter, and not in accordance with Edwards v. R. [1973] AC 648. We take this opportunity of directing trial judges that when the issue of provocation is raised and the conduct appears to be self-induced then a direction in accordance with Johnson should be given.

15. The second ground of appeal is that the Judge failed to give any direction on good character. The applicant led evidence that he was a person aged 21, at trial, and had a clear record. Nowhere does the Judge mention this. It is incumbent on the Judge to give the standard direction on good character. Since R. v. Berrada [1989] 91 Cr. App. R 131 it became common for trial judges in England to give a direction not only as to good character being relevant to credibility, where a defendant has testified or made pre-trial answers or statements, but also as to the likelihood of his having committed the offence. However, many judges omitted the second limb of the Berrada direction. In R v. Vye & ors. [1993] 1 WLR 471 the English Court of Appeal has decided that both limbs - credibility and propensity - of the direction should be given.

16. It is not necessary for this Court to come to a similar decision, but it is strongly advisable for the "second limb" direction to be given for persons of good character in cases where the propensity to commit a crime is obviously relevant, for example a 40 year old man charged with theft or a sexual offence.

17. Had this been the only ground of appeal we would have applied the proviso. However, we grant the application on the failure of the Judge to direct the jury properly on the law of provocation, and we quash the conviction.

18. We would only add that it is the duty of prosecuting counsel to remind the Judge of non-directions and to correct him on misdirections. This was not done here.

19. We also order that this applicant be re-tried on an indictment for murder.