R. v. CHAN CHING FUNG

Criminal law - murder - provocation - reasonable person - appropriate practice suggested where particular characteristics of defendant relied upon.

Attempt - common law definition still applicable in Hong Kong.

Attempted murder - actus reus - whether jury should be permitted to consider verdict on factual basis other than that upon which the cases both for the prosecution and the defence were conducted.

--------------------------

J U D G M E N T

--------------------------

Fuad, V.-P.:

1. This is the judgment of the court.

2. On 23rd October 1991, the applicant Chan Ching Fung was convicted in the High.Court (Bewley, J. and a jury) of two counts of murder (Count 1 and Count 2) and one count of attempted murder (Count 3). She had pleaded guilty on arraignment to arson (Count 4). The applicant was sentenced to the mandatory sentence of death on Counts 1 and 2 and to 5 years' imprisonment on Counts 3 and 4, those sentences to run concurrently. She now seeks leave to appeal against the convictions on Counts 1, 2 and 3.

3. At the conclusion of the hearing on 6th August, we treated the application for leave to appeal as the hearing of the appeal. We dismissed the appeal on Counts 1 and 2. We allowed the appeal on Count 3, quashed the conviction and set aside the sentence on that count. We now give our reasons.

4. At the time the terrible and tragic events disclosed by the evidence took place, the applicant was living in a flat on the 29th floor of the Cheung On Estate on Tsing Yi Island, with her husband Mr. Lau Chun Kwok and one of their daughters, a little girl named Sau Man, aged 7. Their other, younger, daughter lived in China. Also living in the flat were Mr. Lau's two daughters by a previous marriage, Lau Sau Yin (aged 15) and Lau Sau Yung (aged 13). They were the victims of the murder charges. Also in the flat was Mr. Lau's son by his former wife, a 17 year-old boy named Lau Wing Yin who was the subject of the attempted murder charge. The seventh member of the household was the 17 year-old daughter of the applicant by her previous marriage.

5. It was common ground that at the time the alleged offences were committed, early in the morning of 19th July 1990, the only persons in the flat were the applicant, her two step-daughters, now deceased, and her step-son Wing Yin. Mr. Lau had gone to work. The applicant had taken their daughter Sau Man to a relative's house on the evening before, and the applicant's daughter Yau Wai Man had not been at the flat for the past couple of days or so.

6. The relationship between the applicant and her three step-children had been bad for some considerable time. So much so that at one time Mr. Lau had arranged for all three children to live with their aunt "to avoid disputes". When Mr. Lau was first allocated the flat in the Cheung On Estate, he took his son Wing Yin to live with him, the applicant and their children. Later, with tragic consequences as it turned out, to save money, he arranged for his daughters Sau Yung and Sau Yin to join the rest of the family in the new flat.

7. According to the evidence of the boy Wing Yin there were "constant quarrels" between his step-mother and her step-children - "I don't know for what reasons, my step-mother had a dislike for us and she would scold us over trivial matters". He testified that on 16th July he returned home at about 5 p.m. and found the applicant there. She was on the telephone "speaking ill" to someone about him and his sisters. She was saying that his sister Sau Yin had thrown a glass tumbler at her. His sister then told him what had happened and how their step-mother's leg or foot had been cut by glass from the tumbler and how the police had come following their step-mother's report. He said he had scolded the applicant for having reported such a trivial matter to the police and that she had then turned her anger on to him. His other sister had then returned home and quarrelled with the applicant who had then left the flat "flaming with anger", saying that she wanted to report the matter to the police. He said that when she left "she appeared fierce".

8. Lau Wing Yin went on to testify that his step-mother returned to the flat at about 8 p.m. and said that she wanted to take her daughter Sau Man to a friend's house and left with her. There was evidence from her niece that she left her daughter at her home at about 9 p.m. while her own mother was at work. At about 10 p.m. Wing Yi heard what he took to be his step-mother returning home. He was watching television with his sisters at the time. They all then went to bed, he in his own bedroom, and the two girls in the room they shared usually with the little girl Sau Man.

9. The boy then told the court that at about 10:30 p.m. he got up to go to the lavatory and saw the applicant lying down awake in the sitting room. Shortly afterwards when he got himself a glass of water she was still lying there on a couch or bed, still awake. They said nothing to each other. Later he was awakened by the heat. He saw fire burning outside the door of his bedroom. He tried to leap through the flames but was beaten back. He shouted. to his sisters who got up and told him they could not open the door of their bedroom. He then managed to pass through the flames and his hair was singed and his arm burned. He ran into the kitchen. There was fire outside his sisters' bedroom too and they had still not managed to get out of their bedroom.

10. When the boy reached the kitchen he found his step-mother there, standing on the window ledge, holding the bars with both hands. He thought she was not aware of the fire and told her of it. She then tried to "pull [him] out" saying "I want to watch the 3 of you die." She grabbed his arm with both hands, trying to pull him out towards the window at the balcony of the kitchen. They struggled and she said she wanted to jump out with him. She then tried to jump out of the-window herself and so he grabbed hold of her to prevent her doing so. He held his arms round her and told her not to jump. She said she wanted to, and kept trying. He kept holding her back. He then saw the fire brigade arrive. An officer asked him for the keys to the grille. He saw some on the floor. When he tried to get them, his step-mother snatched them from him and threw them away, he knew not where. He tried to find them, but could not.

11. The fire was seen by a neighbour who lived opposite. This was about 2 a. m. He dialled "999" and a patrolling police officer answered the call, followed by the fire brigade. The police officer saw that the grille outside the front door was padlocked with 2 padlocks - one was the usual one the family all had keys to, and used; the other padlock, according to the prosecution case, was one which had not been seen before and for which keys were never found.

12. The front door was open and the police officer saw the 13 year old victim inside. The fire raged behind her. He could not break the padlocks on the grille. The other girl also came to the grille. The police officer tried to pour buckets of water onto them from outside but sadly was unable to save them, as will be seen. When the fire brigade came, they cut the padlocks and went into the flat.

13. The two girls were taken to hospital. The 15 year-old, Sau Yin was found to have suffered 80 per cent burns on her body. The 13 year-old Sau Yung had 77 per cent burns on her body. The doctors could not save the life of either girl. Sau Yin died on 27th July 1990 and her younger sister on 28th August.

14. A Government Forensic Scientist, Mr. Cheng Yiu Sang, was called by the prosecution. He examined the flat where the fire occurred. He found six separate "seats" of the fire. Most of the damage by fire was to the rooms occupied by the two deceased girls and their brother. The partition between their rooms had burned down completely. There was a can of kerosene in the room used by the applicant and her daughter Yau Wai Man. There was a smell of kerosene around. His conclusion was that the fire had been started deliberately at the six separate "seats".

15. Mr. Lau Chun Kwok, the applicant's husband and the father of the dead girls, confirmed his son's evidence about the disharmony in the family. When he had returned from work on the morning of 18th July he had gone to bed at about 8 a.m. He was woken up by the noise of a quarrel between his wife and his daughter Sau Yin. He saw the broken pieces of a tumbler on the floor and that his wife's leg was bleeding. He was angry with them both. The applicant went to report to the police. A police officer returned with her and settled the matter. He said that the LP gas cylinder found in the corridor by the firemen was usually kept in the kitchen and that the family did not use kerosene for cooking. He had never seen the second padlock found on the grille.

16. On 19th July at about 7:30 p.m. the applicant gave a long statement under caution to a Detective Constable through an interpreter (she spoke the Amoy dialect) in the presence of a Detective Sergeant and a Woman Detective Constable. No challenge was made to the admissibility of this, or her second statement. She was told that the Detective Constable had reason to believe that earlier that day she had attempted to murder her three step-children "by means of setting fire" - the girls had not died by this time. She said:

"    I understand what the police said. However, I am very miserable. I myself did wrong. I had no intent to burn them to death."

17. She then gave the details of a quarrel she had on the previous day with her husband, her elder step-daughter and her step-son and how she had made a report to the police who had settled the matter at their flat. She said that she went out to buy some noodles and when she returned she-was not allowed in until her daughter opened the door. She went on to say:

"    They, two people, joined LAU Sau-yin to blame me for making a report to the police. They together approached to hit me and caught hold of me. LAU Sau-yung also held a screw-driver and caused abrasion to my hand in a thrust. She also poked my forehead with finger. She scolded me, 'Damned chicken woman. Damned old bag. Get the hell out of here. Go to hell as early as possible.' At that time, I was irritated. Thus I went down to a shop in Cheung Fat Estate and bought thirty dollars' value of kerosene, which was contained in a plastic tank, with intent to bring it home for setting fire so that all the people would die together. To die would be better than to be bullied all the time. Even if I did not died, it could serve the purpose to frighten them. But when I walked with the tank of kerosene in hand and thought it over, I did not want to cause a big incident like arson. Thus I placed the tank of kerosene at the small park below my home.

    I returned home on my own. Then I took my youngest daughter, LAU Sau-man, to a relation in Tsuen Wan for lodging, because I intended to go to China on my own for staying away from home. At some time after 9 o'clock, yesterday, I myself returned to my home in Tsing Yi. I cooked some noodle for eating. But soon after that, LAU Sau-yin, AL As-young and AL Wing-yin came out from their own rooms to repeatedly scold me and poked my head with finger. I was very angry. I went down to the small park, got back the tank of kerosene, came up and put it in the sitting room of the home.

    Then I got a lot of wine for drinking. Having drunk it I went into the room to sleep. After an unknown time, I felt my head ached seriously. The more I thought, the more I was irritated. I went out to the sitting room to get the tank of kerosene and used newspaper and match to set fire. I also used a small basin to contain kerosene for splashing it on the floor of the sitting room.

    When fire burnt, my son, AL Wing-yin, rushed out from his room and fetched miscellaneous thing in a bid to put the fire out. At that time, I also felt that the incident was too big. I gave my assistance and took miscellaneous things out from the cabinet in a bid to put the fire out, but failed. It was full of smoke. Ah Yin pushed me out to the balcony and closed the door of the balcony. I placed the key to the balcony door on the balcony concrete coping, but 1 did not know why

    Ah Yin approached to snatch the keys. In that moment, firemen had arrived. Everything was in confusion. I cannot assure myself if it was the fireman who rescued Ah Yin and me out of the house. I set fire to burn the house this time with intent to frighten people, but caused such a big incident by mistake. I deeply repent of it."

18. The applicant was asked a number of questions, again under caution, by the same Detective Constable on the following day. One question and answer was as follows:

"Q.     You mentioned in the statement: 'At that time, I.also felt that the incident was too big. I gave my assistance and took miscellaneous things out from the cabinet in a bid to put the fire out'. What were these 'miscellaneous things'?

19. When she was formally charged by a Superintendent, under caution, she said this in answer to the charge that she had murdered As Young:

"It was very wrong of me to do this event. I did not expect that it was a serious offence. I did not attempt to murder her on purpose. My aim was to frighten her so that she would not hit me or scold me in the future. If I was to kill her on purpose, I would rather use poison or knife to kill her than use fire to burn her to death. I just used fire to frighten them. I have no other way to go. wish that all people would forgive me. I am feeling very painful and remorseful."

When charged with the death of As Yin she responded:

"I am very wrong. I expected that it was a serious offence. I have no other way to go. I do not know why my mind would lead me to do that."

In answer to the charge that she had attempted to murder her step-son Wing Yin, she said:

"It was very wrong of me to do this event. I feel very remorseful. In fact I do not intend to kill. I just wanted to frighten people. I have never hit or scolded them before. Now I wonder why I would think that in my mind."

To the arson charge, she replied:

"In fact I originally wanted to light up a small fire in frightening people, but it turned out to be a big fire. I have not received good education. If I had received more education, I would not have caused this event. After the occurrence of this event, I did not sleep well or eat well. It's actually an extremely big sin. I feel very remorseful of having done this event."

20. Station Sergeant Au Young kWh Bun was called and after he had merely said in chief that he was duty officer at kWh Chung Police Station during the night of 21st July 1990, he was cross-examined by defense counsel, Mr. Ramanathan (who also represented the applicant on the appeal before this court). The witness told the court, in answer to counsel's questions, that at about 10:20 p.m. that night when he was on a routine inspection of the police cells, he saw the applicant in her cell. Her trousers were round her neck and she was hanging from the bars of the cell with her feet off the ground . She was still moving her hands and feet, and breathing, when he held her body up from outside. Two colleagues answered his shouts for help and the cell door was unlocked. She struggled with her saviors. There was blood on her lips. An ambulance came and she was taken to hospital. From what he had seen he thought she was trying to commit suicide.

21. The applicant gave evidence before the jury. She told the court of the unhappy marriage she had and the trouble her three step-children caused her. The family's troubles began when her step-children arrived from China in 1988. When they quarreled with her, her husband took their side. After six months he left with his own children and stopped her allowance; and forced her to give him money. After the flat in the Cheung On Estate had been allocated to her husband all was well for a while until her two step-daughters moved in. The trouble then started all over again. There were daily quarrels. The girls kept her awake at night by coming in and out of the flat and watching television. They scolded her and hit her and wanted her own daughter Sau Man to be sent to China. She developed headaches and felt something heavy pressing her heart. She was unable to sleep and felt very low.

22. She started to drink beer and rice wine at bedtime. Most of her evidence about the events of 18th July had been foreshadowed in her police statement. She spoke of her husband and the step-children hitting her and how she was cut by the broken tumbler which had struck her on her leg. After the police officer who had come to the flat following her report had left she went out to buy food and her step-son scolded her on her return. When her husband had gone to work, all three step-children assaulted her. She ran away from the flat. Her first idea was to buy kerosene to frighten the children. Then she thought she would use it to cook food for herself. The third idea was to go to China. She was, she said, in a state of confusion. She returned with the kerosene and then decided to go to China. She did not go to the flat with the kerosene. She left it in a corner of the park below the block of flats.

23. When she entered her flat she tried to ring her step-sister about going to China but the step-children would not let her. Then she went to her step-sister's house with her daughter Sau Man. When the time came to.go home, Sau Man wanted to stay and play with the other children there and so she left the child and went home alone. She was again abused and assaulted by her step-children. She went to her bedroom with a bad headache. She felt confused and desperate and she was trembling. She had a drink. She then went and fetched the kerosene to cook a meal in her room, but she could not find the kerosene cooker. She continued to tremble and drank some more wine, which she finished off. She went to sleep.

24. When she woke up she was still confused and angry. She slept again. When she woke up again "then the flat caught fire". She accepted that she was the one who had started the fire Her mind was entirely mixed up. She just did not know why she should have done what she did. She did not intend to kill the girls: "I intended to prevent them from assaulting Sau Man and me in the future." She added: "At the time when the flat was on fire, I did not know what I was actually doing and I thought I had reported the matter to the police, yet all the same they continued to assault me. I could not resort to any other methods."

25. She said that she only intended to frighten the children. When she realised how big the fire was she tried to put it out and shouted an alarm. She could not remember what happened in the kitchen. She was in an entirely confused state.

26. Two psychiatrists gave evidence for the defence: Drs. Ching Kit Ming and Chung Sze Yuen. They both concluded that the applicant was suffering from diminished responsibility at the material time. In rebuttal, the prosecution called Dr. Fan Tak Wing. His opinion was that the evidence did not reveal abnormality which was sufficiently substantial to amount to diminished responsibility. The summing up fully reviews this evidence and we do not summarise here it in the light of the issues raised by this application for leave to appeal.

27. The first ground of appeal raises a complaint about the way in which the judge directed the jury on the issue of provocation. This is what the judge said:

"    Provocation is some act or series of acts done and/or words spoken which causes in the defendant a sudden and temporary loss of self-control which would cause a reasonable person to lose his self-control and to behave as the defendant did.

    So there are 2 questions here: did the allegedly provoking conduct cause the defendant to lose her self-control? And secondly, might that conduct have caused a reasonable person to lose her self-control and to behave as the defendant did?

    As to the second question, take into account everything said or done according to the effect which in your opinion it would have on a reasonable man, or woman of course. A reasonable man is a person having the powers of control to be expected of an ordinary person of the sex and age of the defendant." [pp. 2-3]

28. It is submitted that that part of the summing up is defective because the judge did not go on to use words to the following effect immediately after the passage we have cited "but in other respects sharing such of the defendant's characteristics as you think would effect the gravity of the provocation to her". Mr. Ramanathan took these words from the speech of Lord Diplock in D.P.P. v. Camplin (1978) 67 CrAppR 14, at p.21.

29. Mr. Ramanathan submitted that the judge ought to have drawn the attention of the jury to the following "characteristics" in this context as being relevant to the issue of provocation. He has identified them from the judge's summary of the evidence relevant to the issue of diminished responsibility. The suggested characteristics are: (a) that the applicant had been suffering from chronic depression for several years (the evidence of Dr. Ching Kit Ming) confirmed by the evidence of Dr. Chung Sze Yuen); (b) that a person in the applicant's depressed state was more susceptible to provocation because it was easier to lose one self-control in such circumstances (evidence of Dr. Chung); (c) that the applicant had a primitive personality and did not release her anger in the normal way (evidence of Dr. Ching); and (d) that she was suffering from neurosis arising out of depression, the effect of which was that she exhibited an accelerated response to everyday experience (the evidence of Dr. Fan Tak Wing).

30. Mr. Ramanathan referred us to the decision of this court presided over by Roberts, C.J. in The Queen v. Wong Chung Ming, Criminal Appeal No. 502 of 1985, 30th April 1986 (unreported). In that case, Roberts, C.J. gave it as the opinion of the court (at page 8) that if the full Camplin direction were given in the literal terms in which it was expressed, it was likely to confuse rather than to assist the jury unless, when referring to the accused's characteristics effecting the gravity of the provocation, the judge went on to inform the jury as to the matters which were capable of amounting to the sort of characteristics peculiar to the accused which could be taken into account. The former Chief Justice. then went on to mention the examples given in Camplin of characteristics peculiar to the defendant which might be relevant in certain circumstances. He stated that the conclusion of the court was that the trial judge ought to have given the jury some direction as to what was meant by the accused's characteristics. However, he observed that the evidence disclosed no peculiar characteristics that the judge could have told them to take into account, other than the sex and age of the defendant and his background in society, matters to which their attention had been drawn.

31. In this context we would refer to R. v. Newell (1980) 71 CrAppR 331 where the English Court of Appeal (Criminal Division) presided over by Lord Lane, C.J. described as impeccable, and adopted, a passage and the reasoning it contains, from the decision of the New Zealand Court of Appeal in McGregor (1962) NZLR 1069. Lord Lane said this at pp.338-340:

    " It seems to us that to ascertain the meaning of the speeches in D.P.P. v. Camplin (supra) it is necessary to consider the meaning of the word 'characteristics' as used in those speeches. To do so we find it helpful to refer, as we were invited to do by Mr. Crespi, to McGregor [1962] N.Z.L.R. 1069, referred to by Lord Simon of Glaisdale. First, we would read the material parts of section 169 of the New Zealand Crimes Act 1961: '(1) Culpable homicide that would otherwise be murder may be reduced to manslaughter if the person who caused the death did so under provocation. (2) Anything done or said may be provocation if - (a) In the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control; and (b) It did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide. (3) Whether there is any evidence of provocation is a question of law. (4) Whether, if there is evidence of provocation, the provocation was sufficient as aforesaid, and whether it did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide, are questions of fact.'

32. In Mcgregor (supra) the judgment of the court was delivered by North J., and contains the following passage which appears to us to be entirely apt to the situation in the instant case:

'The Legislature has given us no guide as to what limitations might be imposed, but perforce there must be adopted a construction which will ensure regard being had to the characteristics of the offender without wholly extinguishing the ordinary man. The offender must be presumed to possess in general the power of self-control of the ordinary man, save in so far as his power of self-control is weakened because of some particular characteristic possessed by him. It is not every trait or disposition of the offender that can be invoked to modify the concept of the ordinary man. The characteristic must be something definite and of sufficient significance to make the offender a different person from the ordinary run of mankind, and have also a sufficient degree of permanence to warrant its being regarded as something constituting part of the individual's character or personality.

A disposition to be unduly suspicious or to lose one's temper readily will not suffice, nor will a temporary or transitory state of mind such as a mood of depression, excitability or irascibility. These matters are either not of sufficient significance or not of sufficient permanency to be regarded as 'characteristics' which would enable the offender to be distinguished from the ordinary man. The 'unusually excitable or pugnacious individual' spoken of in Lesbini (1914) 11 Cr.App.R. 11; [1914] 3 K.B. 1116 is no more entitled to special consideration under the new section than he was when that case was decided. Still less can a self-induced transitory state be relied upon, as where it arises from the consumption of liquor.

The word 'characteristics' in the context of this section is wide enough to apply not only to physical qualities but also to mental qualities and such more indeterminate attributes as colour, race and creed. It is to be emphasised that of whatever nature the characteristic may be, it must be such that it can fairly be said that the offender is thereby marked off or distinguished from the ordinary man of the community.

Moreover, it is to be equally emphasised that there must be some real connection between the nature of the provocation and the particular characteristic of the offender by which it is sought to modify the ordinary man test. The words or conduct must have been exclusively or particularly provocative to the individual because, and only because, of the characteristic. In short, there must be some direct connection between the provocative words or conduct and the characteristic sought to be invoked as warranting some departure from the ordinary man test.

Such a connection may be seen readily enough where the offender possesses some unusual physical peculiarity. Though he might in all other respects be an ordinary man, provocation words alluding for example to some infirmity or deformity from which he was suffering might well bring about a loss of self-control. So, too, if the colour, race or creed of the offender be relied on as constituting a characteristic, it is to be repeated that the provocative words or conduct must be related to the particular characteristic relied upon. Thus, it would not be sufficient, for instance, for the offender to claim merely that he belongs to an excitable race, or that members of his nationality are accustomed to resort readily to the use of some lethal weapon. Here again, the provocative act or words require to be directed at the particular characteristic before it can be relied upon. Special difficulties, however, arise when. it becomes necessary to consider what purely mental peculiarities may be allowed as characteristics.

In our opinion it is not enough to constitute a characteristic that the offender should merely in some general way be mentally deficient or weak-minded. To allow this to be said would, as we have earlier indicated, deny any real operation to the reference made in the section to the ordinary man, and it would, moreover, go far towards the admission of a defence of diminished responsibility without any statutory authority in this country to sanction. There must be something more, such as provocative words or acts directed to a particular phobia from which the offender suffers. Beyond that, we do not think it is advisable that we should attempt to go.'"

We mention here that in his speech in Camplin, Lord Simon of Glaisdale had said, at p.29: "I think that the law as it now stands in this country is substantially the same as that enacted in the New Zealand Crimes Act 1961 section 169 as explained by the Court of Appeal of New Zealand in McGregor."

33. Even if all or any of the aspects of the mental state and character of the applicant pointed to by Mr. Ramanathan could be regarded as relevant characteristics in the sense of the word used by Lord Diplock in Camplin (which we seriously doubt) we do not think it could fairly be said that the provocative words and conduct put forward by the defence were in any way related to the alleged particular characteristics relied upon. As examples, a defendant's race is irrelevant if the provocation is an insult about a physical disability. His sex would be irrelevant if the provocative act was a racial taunt.

34. We suggest that it would be good practice, whenever particular characteristics are sought to be relied upon by the defence in the context of provocation that, in the absence of the jury, these should be discussed and identified by the judge with counsel, on the analogy of the approved practice when issues regarding corroboration arise. This seems to us to be specially important where, as  so often happens, defences of provocation and diminished responsibility are run in the same case. If particular characteristics are relied upon, and the judge feels that he can properly put them before the jury for their consideration, they should be mentioned by the judge and their relevance carefully explained. We find no merit in the first ground of appeal.

35. The second ground of appeal relates to the way in which the judge directed the jury on the burden of proof in respect of the defences of provocation and diminished responsibility. Mr. Ramanathan drew our attention first to the following passage in the summing up:

"If you are sure that the defendant lit the fire intending to kill or cause grievous bodily harm to the victims, you should convict her of murder on counts 1 or 2, unless you find that either provocation or diminished responsibility are established and then you would convict of manslaughter in either case. If you are not sure that the defendant possessed this murderous intent; for example, if you think it possible that she intended merely to frighten the girls, then you should also convict of manslaughter. The reason for that is killing is manslaughter if it is the result of a defendant's unlawful act which all sober and reasonable people would inevitably realise must subject the victim to the risk of some harm, which is the case in this case." [p.4]

Counsel's complaint relates to the first sentence of thatpassage, and particularly to the use of the word "established". He acknowledged that the judge had initially given proper directions as to the burden and standard of proof in respect of the two defences raised, in this passage:

"As Mr CAHILL has told you, because the prosecution must prove the defendant's guilt, it is not for the defendant to prove that she was provoked. The prosecution must make you sure that the defendant was not so provoked before you can convict her of murder. If you are satisfied that she was provoked or if you think that she may have been provoked, then you can only convict her of manslaughter.

    Diminished responsibility: as I have said, the prosecution must prove to you so that you are sure of them, all the facts which go to make up the defendant's guilt. But where this defence of diminished responsibility is raised, it is for the defence to prove it. However, the defence's task is not as heavy as that for the prosecution in proving guilt. It is enough if the defence satisfies you that its case is more likely than not to be true. If it does that, you must find the defendant not guilty or murder and guilty of manslaughter." [p.3]

36. However, counsel contended that by saying what he did in the first sentence of the passage cited above from page 4, the judge had blurred the distinction between the incidence of the burden of proof as it applied to the two defences. This, he said, had the effect of reversing the burden of proof on the issue of provocation and may have caused the jury to address the issue on the basis that it was for the applicant to establish the defence rather than for the Crown to disprove it. As the very least, he suggested, the jury might have been confused.

37. The direction which counsel conceded was correct was given probably less than a minute before the words complained of. In our view, the jury could not possibly have forgotten what they had just been told. When this part of the summing up is read as a whole we are satisfied that there was no misdirection, and that there was no possibility of confusion in the jury's mind. This ground of appeal also fails.

38. The third ground of appeal makes reference to certain passages in the summing up (set out below) and states that the judge was thereby, in effect, suggesting to the jury that "lies told by the applicant could amount to guilt of the offence". The judge had therefore misdirected the jury on the proper approach to the applicants evidence. In particular. It is said, the judge failed to direct the jury that lies do not necessarily amount to guilt and failed to direct them as to the manner in which they should approach the issue of lies if they concluded that the applicant had lied.

The passages relied upon are these:

"But you, of course, must have regard to the factors that point to murder. Firstly, the removal of Sau-man. Do you believe her story about not wanting to come home? If you do not believe that, do you think that the defendant made sure that the girl was not at home because she knew that there was going to be a fierce fire?" [p.28]

"The opinion of the doctors, of course, deserve your closest attention and respect. But the opinions are based, to a large extent, on what the doctors were told by the defendant and by her family. If it is untrue or if it is exaggerated, the doctors admit that their conclusions would be flawed to some extent at any.rate. Also, at the end of the day it is your view that matters. The doctors do not decide this issue." [pp. 30-31]

"You have heard the evidence and you must come to your conclusions on the facts. You will have to decide whether the defendant has told the truth to the court, to the police and, indeed, to the doctors. You may think it is clear that the defendant was in a state of confusion after the fire, and that is clearly indicated by the cautioned statements. You will also have regard to her ambivalent behaviour concerning the kerosene which tends to indicate a confused mind before the fire. Of course, the doctors all agree that she knew what she was doing." [p.31]

39. Mr. Ramanathan submitted that in the light of all the evidence led by the prosecution and the defence, the applicant's credibility was a matter which the jury had to consider in assessing the evidence as a whole and her credibility would have been a crucial factor influencing their deliberations. He pointed out that the judge at no time had specifically explained to the jury that even if they thought that the applicant may have been lying on one or more of the facts she related in and out of court, this did not mean that she was guilty of the offence charged.

40. Mr. Ramanathan cited Broadhurst v. The Queen (1964) AC 441 where at p.457, Lord Devlin, giving the judgment of the Privy Council said this:

"It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if upon the proved facts two inferences may be drawn about the accused's conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness."

41. Mr. Ramanathan drew our attention to the unreported decision of this Court in The Queen v.Keung Sin Chi, Criminal Appeal No. 965 of 1983 where Yang, J.A. (as he then was) speaking for the court cited and adopted that passage from Broadhurst. Mr. Ramanathan did not seek to persuade us that the passage in his judgment which immediately follows the citation from Broadhurst was an incorrect statement of the law:

"Whilst this is undoubtedly a desirable course for a judge to adopt, we do not think that it is imperative for a judge to direct the jury in this way in every case; indeed there is no authority that we know of which imposes such an obligation on a judge. He must, of course, avoid giving any impression that lies are necessarily indicative of guilt of the offence charged, as did the judge in the case cited. Each case must be dealt with on its own peculiar facts."

42. It was submitted, however, that the passage from the judge's summing up at p.31, set out above, was likely to induce the jury to take the view that lies might be indicative of proof of guilt and that this was the sort of case in which the judge should have given a Broadhurst direction.

43. We do not understand the passages relied upon in the way contended for. The judge was not suggesting that any particular lie (if the jury found it to be one) strengthened the inference of guilt. All he was doing, it seems to us, was to tell the jury that it was their task to determine where the truth lay on the facts disputed. We do not think that this was the kind of case that demanded a Broadhurst type direction. We also draw attention to the fact that the judge, in the same passage set out above (page 31) gave a clear indication of his own opinion that the applicant might well have been in a state of confusion before the fire and after the fire. We do not find that there was a non-direction. This ground of appeal has no substance in our view.

44. Having rejected grounds 1, 2 and 3 in the Notice of Appeal, ground 4 (that by reason of the matters raised in the earlier grounds of appeal, the convictions on Counts 1 and 2 are unsafe and unsatisfactory) falls away.

45. The fifth and final ground of appeal is that in relation to Count 3 (the attempted murder of the boy Lau Wing Yin) the judge had erred in law in inviting the jury to consider that count on a factual basis other than one, upon which the cases both for the prosecution and for the defence had been conducted. The applicant, it was argued, had been prejudiced by the fact that the Crown had been allowed to shift the basis of its case.

46. Mr. Ramanathan drew attention to the following passages in the summing up (which, it must be accepted, clearly show how the judge saw the prosecution case):

"Count 3, ... It is alleged that she tried to push him out of the window." [p.4]

"He [Lau Wing Yin] ran to the kitchen. His hair and his arm were burnt. He said the fire was getting worse. He saw the defendant standing on the ledge of the balcony facing the open window and holding the bars.. He said this window was normally locked at night. He told her to put out the fire, but she said 'I want to watch the 3 of you die'. And she grabbed his arm pulling him towards the balcony. He understood that she wanted to jump with him. He managed to break free. She tried to jump 5 times, he said. She was obviously keen to die but he managed to pull her back and overpowered her while he shouted for help." [p.6]

"Finally, I come to the third count. You will have to consider the relationship between Wing-yin and the defendant which was, we all agree, better than with his sisters. But, remember that they had had a row that afternoon about the reporting of the dispute to the police, and the defendant says that Wing-yin also assaulted her in the kitchen. So, do you think she was trying to throw him out of the window or merely trying to take her own life? Wing-yin had said 'She said she wanted to grab me and jump to the ground.' Is there any reason, do you think, why he should lie about this and about her pulling him towards the balcony window? Do you think that he was' helping her to put the fire out? If so, that is hardly consistent with an attempt on his life." [pp.31-32]

47. What happened which gave rise to counsel's complaint was this. After the jury had been out for about three and a half hours they sent a written question to the judge. He read it out to counsel in court in the absence of the jury. The question was in this form:

"In considering Count 3 whether it should also cover Madam CHAN Ching-fung's attempted murder of Mr. LAU Wing-yin by setting the flat on fire, or should it only cover the defendant's alleged act of pulling Mr. LAU Wing-yin out of the window at the balcony?"

48. Counsel for the Crown then submitted, in response to a question from the judge, that it was the Crown's case that the attempt was directed towards the three children, although the Crown had put it "on the basis that it was the actual dragging [Wing Yin] towards the window and seeking to thrust him out of the window". He submitted that on the facts it was open to the jury to consider both "-'the setting of the fire in that particular doorway as being part of the attempted murder, and equally the attempt to pull him towards the window and thrust him out of the window."

49. After Mr. Ramanathan had referred to his recollection of prosecuting counsel's closing address, Crown counsel said:

"My Lord, I could assist my friend by saying that I have indicated to him that the Crown's case from the beginning was that it was the grabbing of the arm and dragging him towards the window that the Crown considered that it was appropriate to lay a charge of attempted murder. But on the facts before the court now it is open to them to consider the earlier situation." [p.35]

50. Counsel for the applicant then pointed out that he had addressed the jury on the basis of that particular alleged incident. He suggested that it was far too late in the day for the jury to be invited to start considering any earlier point in time because they might be "embarking into areas of evidence that perhaps ha[d] not been fully canvassed."

51. The judge overruled the objection in these words:

"I take your point, Mr. Ramanathan, but in my view it would be illogical to withdraw the matter from the jury. I think they must consider both."

When the jury were brought back into court, the judge gave them this further direction:

"The answer is you should consider the first matter as well as the second matter, but you would only go on to consider the act of pulling him out of the window if you had rejected the attempted murder by setting the flat on fire. If you reject that then you may go on to consider the second matter, but they are both before you." [p.36]

52. In our judgment, the complaint made by Mr. Ramanathan was justified. When counsel then appearing for the Crown opened the case (see page 77 of the transcript) he spoke about the defendant grabbing the young boy and attempting to throw him from the 29th floor through the window but that he was strong enough to resist. In his closing address to the jury he does not mention events relating to Count 3 specifically. It is clear from pages 321 and 322 of the transcript that defence counsel thought he had to meet case of attempted murder on the basis of the incident in the kitchen when it was alleged to throw the boy Wing Yin out of that the applicant tried the window.

53. The defendant is entitled to know precisely what conduct is alleged by the prosecution to be the actus reus of the offence charged against him. Had defence counsel been in doubt at the outset of the trial what case the applicant had to meet on Count 3, he would have been entitled to insist that the prosecution particularise the facts upon which reliance was placed in support of that count. In the light of what Crown counsel said (at page 35, see above) the particulars given would obviously have related only to the "dragging the boy to the window" incident.

54. When the charge is attempted murder, the actus reus might, of course, consist of a single act or a series of acts, particularly where physical assaults are involved, and the combined assaults might be committed by different means. But here, setting fire to the flat with the necessary intent and trying to throw the boy out of the kitchen window cannot be regarded as elements of the same actus reus. They were not acts of the same kind even though one act followed closely upon the other and both may have been done with the same mens rea. The position would have been entirely different if the allegation had been, say, that the applicant had tried to prevent the boy from escaping the fire via the window. In these somewhat unusual circumstances, the true position might even be that on the facts sought to be proved by the prosecution two distinct offences would have been committed and should have so been charged, if both acts were relied upon.

55. However, other problems arise in relation to Count 3. Firstly, it must be noted that the judge nowhere made it clear to the jury that for the crime of attempted murder nothing less than an intention to kill will do. Especially where a count of attempted murder is joined in an indictment with a count of murder, it is essential for the judge to make the distinction between the relevant intents which need to be proved for each crime plain to the jury.

56. There is a misdirection in the following passage in relation to what is an attempt in law:

"On this count [3], before you can convict the defendant, you must be sure of 2 things: first that he intended to commit the offence and second, that with that intention, he did something which was more than mere preparation for committing that offence. It is for you to decide whether what he did was more than mere preparation. It is alleged that she tried to push him out of the window." [p.4]

57. From the words he used, it is quite clear that the learned judge summed up on this issue on the basis of the law codified by the Criminal Attempts Act 1981 of the United Kingdom. Broadly speaking, what the 1981 Act did was to alter the nature of the actus reus of attempt. Preparatory acts not sufficiently proximate to satisfy the common law became attempts. As Yang, V.P. (as he had become) pointed out in The Queen v. Chan Kwan and Another [1987] HKLR 756, at p.759 Hong Kong has no statute containing the same provisions as the English Act and so the common law still'' applies. We have been told that the position has not changed since that decision. The direction was, therefore, wrong. Judges in Hong Kong must continue to charge the jury in accordance with the common law of attempt. It is just as wrong to sum up as if the statute applied here in Hong Kong as it is in England to sum up on the basis of the common law as it was before the 1981 Act was enacted (see e.g. R. v. Jones [1990] 1 WLR 1057.)

58. Another important point, it seems to us, is that even if it were proper to leave the issue of the attempted murder of the boy by setting fire to the flat to the jury, when the judge gave the additional direction, he did not make it clear to the jury that when considering that act in relation to the boy for the purposes of Count 3, an intent to kill had to be proved, whereas in respect of the two girls the same act could result in convictions on Counts 1 and 2 even if only really serious harm were intended. The jury could not possibly have appreciated the difference and its significance.

59. It was for these reasons that we considered that the conviction on the 3rd count could not stand.