HKSAR v. HO PO KWONG

CACC 72/2018

[2019] HKCA 1069

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 72 OF 2018

(ON APPEAL FROM HCCC 83 OF 2017)

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J U D G M E N T

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Hon McWalters JA (giving the Judgment of the court):

1.  On 14 February 2018, the applicant was convicted by the verdict of the jury of one count of murder, contrary to common law and punishable under section 2 of the Offences against the Person Ordinance, Cap 212. The applicant was sentenced by the presiding judge, Yau J (“the judge”), to life imprisonment. By way of a Notice of Application for Leave to Appeal (Form XI), he now seeks leave to appeal against his conviction.

2.  At the hearing of the application we reserved our judgment which we now hand down.

1.1  The trial

3.  On 7 August 2016, the applicant killed his wife, Madam Tong Sui Pan, by strangling her in the bedroom of their flat.  That he did so was not disputed.

4.  The relationship between the applicant and his wife had come to an end.  They married in March 1997 and their only child, a daughter, was born in April 1998.  The applicant’s wife was 41 years of age at the time of her death and the applicant was 59 years old.  Madam Tong had become romantically involved with another man and wished to divorce the applicant.  This was known to the applicant.

5.  It was the prosecution case that the applicant had earlier decided to murder Madam Tong and then kill himself and so his killing of his wife was a premeditated act.  After killing Madam Tong, the applicant did in fact throw himself into the sea but then had a change of mind and called for help.  He was subsequently rescued by Marine Police Officers.

6.  The only evidence as to the circumstances of the killing came from the applicant.  He made a response to caution after being rescued and participated in two video records of interview.  He did not contest his response to the caution but did assert that the contents of the two video records of interview were not wholly accurate, alleging that the answers he gave were involuntary, given in response to intimidatory threats of violence by the police officers and as a result of coaching by them.

7.  The defence case was that the applicant was guilty only of manslaughter because:

(i)  he lacked the necessary intent to kill or cause grievous bodily harm but did have the intent for unlawful act manslaughter;

(ii)  even if he was found to have a murderous intent he was suffering from an abnormality of mind, namely depression induced by his failed marriage and his wife deciding to divorce him so that she could be with another man, which substantially impaired his mental responsibility for the killing (ie a defence of diminished responsibility); and 

(iii) he was provoked by things said by his wife immediately prior to his assault on her which caused him to suddenly and temporarily lose his self-control, and this provocation was enough to cause an ordinary man of his age to do as he did, bearing in mind the context of the applicant being divorced by Madam Tong in order to enable her to leave him for another man who she taunted the applicant was so much better than him in all respects (ie a defence of provocation).

8.  The prosecution case consisted of the evidence of police officers in respect of the applicant’s admissions, medical evidence from the pathologist as to the cause of death of Madam Tong and psychiatric evidence in relation to the applicant. There were also documents left by the applicant in the flat which were in the form of suicide notes and whose contents the prosecution relied on to prove premeditation. 

9.  The defence case consisted of evidence from the applicant, a psychiatrist, for the defence of diminished responsibility, and character evidence from members of his family and from colleagues.  The applicant was a person of previous good character with no history of violence towards his wife.

1.2  The death of Madam Tong

10.  That the applicant was upset by his wife’s decision to divorce him was not in dispute.      As early as on 5 July 2016, the applicant’s daughter(“PW1”) had received a message from the applicant saying that he was going to commit suicide.  On that same day, Madam Tong travelled to the Mainland and did not return to Hong Kong until 6 August 2016.  She arrived home late in the evening of that day.

11.  In the early hours of 7 August 2016, PW1 went home and saw a white envelope on the sofa on which the applicant had written:

“ I have killed mum. Committing suicide now”.[1]

12.  There was also a black briefcase containing some documents and a red handbag.  PW1 then went into her parents’ bedroom and found Madam Tong unconscious, lying on the bed with strips of adhesive tape covering her mouth and nose.  Bruise marks were also seen on her neck.  PW1 called the police and Madam Tong was subsequently taken to hospital where she was certified dead at 1:10 am on 7 August 2016. 

13.  The post mortem examination performed by Dr Fu Ka Chung (“PW14”) revealed that the cause of death was asphyxia, due to smothering and pressure on the neck.  The smothering of the mouth and nose and the pressure applied to the neck could have been the causes of the asphyxia and could have accounted for the death.  The evidence of the pathologist was not challenged by the defence.

14.  Relevant to the issue of the cause of Madam Tong’s death were the following facts which were admitted by the parties:

“ 1. On the night of 6 August 2016, after the Defendant had strangled Madam Tong Sui-pan (the ‘deceased’), and before the adhesive tapes were applied on her, the deceased had already became (sic) unconscious.

2. The deceased, having fallen into the state of unconsciousness owing to the Defendant’s strangling, will be dead if without medical rescue being conducted in time. And on that night, the deceased did not receive timely rescue that would save her life.

3. At the time when the defendant applied the adhesive tapes on the deceased, she was not screaming.” [2]

15.  The applicant was seen floating in the sea near the Tsim Sha Tsui Promenade at about 3:00 am on 7 August 2016.  He was rescued and taken to hospital.  Inside the ambulance, at about 4:00 am on the same day, the applicant was arrested and cautioned.  Under caution, the applicant said:

“ I strangled my wife to death with my hands.” [3]

1.3  The applicant’s suicide notes

16.  The suicide notes consisted of four pages of paper stapled together behind an AXA Insurance business name card of the applicant’s wife who had been working as an insurance salesperson.  The four pages of paper consisted of:

(i)  A two-page letter addressed to the applicant’s sister giving instructions to her.  In the first paragraph of this letter the applicant wrote:

“ Tai Ka Jei (address of eldest sister), please assist On-ki in retrieving me and Ah Pan’s [Requires application to the government (deletion) for a grant of representation] mandatory provident fund (MPF) and transfer the ownership of the flat as estate to On-ki. For Ah Pan and I, please use the simplest and cheapest way to get it done. Please scatter the ashes to the sea after cremation and assist On-ki in entering a university. I have already given her around 30 thousand dollars.”

This was followed by Mandatory Provident Fund (MPF) details in respect of both the applicant and his wife and this letter clearly contemplated the death of the applicant’s wife.

(ii)  Another two-page letter addressed to his daughter in the form of a list of things to do after his death.  This letter clearly contemplated the absence, if not the death, of the applicant’s wife.  Most of the items on the list related to the running of the home, such as the payment of utility bills and of telephone and internet services.  The last item on this list suggested that his wife, whom he referred to as “Ah Pan”, would not be alive.  It was as follows:

“ Ah Pan may have concealed the deed in a drawer in her company, (you) can ask Choi Hung Yee (transliteration) to retrieve it at the company.”

17.  In order to prove that the applicant’s killing of his wife was a premeditated act, the prosecution relied on the applicant’s reference to his wife’s burial arrangements and to her accounts and insurance policy in these documents and to the admissions he made in the video records of interview, to which we shall now turn.

1.4  The applicant’s video records of interview  

18.  The applicant was interviewed under caution in two video records of interview that were conducted inside the police custodial ward of Queen Elizabeth Hospital at about 5:37 pm and 5:47 pm on the same day that the applicant had been rescued and arrested.  They took place after the police confirmed that the applicant understood his rights in custody and was fit to be interviewed.  His fitness to be interviewed was assessed by a psychiatrist at the hospital, Dr Lee Hing Wah (PW9).

19.  During his first interview, the applicant explained how his marital relationship with his wife had turned sour upon his discovery of her extramarital affair with another man in China.  The applicant said that on 6 August 2016, his wife returned home from China around 10:30 or 10:45 pm. When the applicant was in the bedroom with her, he asked about the divorce and she said she had instructed a lawyer to file a unilateral divorce.  In his first video record of interview the applicant described what then happened:

“ … I asked her how the case was going, she said, ‘I have filed for unilateral divorce, I don’t care if you agree or not.’ I was consumed by anger, so I slapped her once, (and) scolded her for seducing man. (I) might (also) have hit her – er, punched her on the shoulder once, then she fell onto the -- then laid -- then laid on the bed, then I strangled (one erroneous character) her by (her) neck. (I) believe the duration wasn’t very long. Then (I) further gave her a slap and a punch. After repeating the cycle for around three times, I only strangled (one erroneous character) her by her neck. (I) strangled (her) on and on, (my) hand(s) became fatigued. Then I strangled her with one hand while covering her mouth and nose with the other hand. Until I felt that she was breathing very weakly, she made a sound of (‘) hai (’) (transliteration), (‘) hai (’) once every ten odd seconds. Then I further taped (her) with adhesive tape, went, went to the living room to take some adhesive tapes to tape on her mouth and nose. Then she was not seen making the sound of (‘) hai (’) anymore. …” [4]

20.  On another occasion in this video record of interview he described in greater detail the killing of his wife and explained why he put adhesive tape on her mouth and nose.  We set this out in some detail as the whole basis of this appeal is a complaint that the jury, in determining whether an ordinary person would do as the applicant did, would have focussed, wrongly, on the acts of the applicant in the course of killing his wife, rather than on whether the provocative act of the wife would have been sufficient to cause an ordinary person to form an intent to kill her or cause her grievous bodily harm:

“ 252. A: Mm. [clear throat sound] okay, you strangled her, lasted -- When you first strangled her, how long did it last?

253. B: May be eight seconds (to) ten seconds, then she -- I hit her again.

…

280. A: Er, you -- you just said that, you said that you had strangled her for around ten seconds, is that so?

281. B: Yes, repeated this for about -- hitting her, slapping her, strangling her, after repeating for three -- three times or so, I simply kept strangling her.

282. A: Was every time you -- er, was the position you strangled her and the hand you (used) the same every time?

283. B: Yes.

284. A: How did (you) strangle (her)?

285. B: Like this, this, grabbed her neck like this, strangled (her) like this.

286. A: Does it mean that (you) grabbed her neck with, er, both hands every time?

287. B: Er, most of the time, until eventually when both of my (hands) became very tired, I grabbed her with one hand, covered her mouth and nose with the other hand.

288. A: Grabbed (her) with which hand …

289. B: Grabbed her with right hand, covered her mouth and nose with left hand.

290. A: How long did the (action) of strangling her last each time?

291. B: (It) lasted for at least fifteen seconds or more.

292. C: Lasted for fifteen seconds every time. You also mentioned that you repeated this action for several times, was that each time after (you) had strangled (her), er, had slapped, slapped her, (you) hit her, strangled her, further slapped (her), further hit (her), further strangled her, [B: Yes] is that so?

293. B: After about three to four times, only strangled her, no hitting.

294. A: Only strangled her, then how long did the last (action) of strangling her lasted?

295. B: Lasted for, I think, around then odd to twenty seconds, until her -- felt that her breath, let out a breath of ‘huh’ sound once every ten odd seconds. I even -- as (I) was completely inflamed, for fear that she hadn’t died yet, I walked out to the living room, took some adhesive tapes to tape on her mouth and nose, then strangled her again, until she -- lasted for may be ten odd (to) twenty seconds, she did not further, did not, let out a breath, breath, breath … [Indistinct] … Then I went out to the living room, wrote a -- that letter, written that, ‘I have killed your mum, I now -- I am going to commit suicide.’ I put that on the black bag and the red handbag before leaving.

296. A: Every time when you strangled her, did she put up different (ways of) resisting …

297. B: She …

298. A: Moves?

299. B: She wanted to push me away, but she was losing (her) strength, that means (just doing so) by instinct, like that.

300. A: Did (she) make any sound, scream, or yell, yell … [Indistinct] …

301. B: No. (She) yelled, yelled, ‘Ah, ah’ earlier on, kept yelling, yelled for several times, but as I had closed the window, it might not be heard from outside.

302. A: Do you think she was yelling loud -- loudly or not?

303. B: Not quite loud.

304. A: Just now, er, you said that finally, you, er -- you just said that you went out to take some adhesive tape, then sealed her mouth.

305. B: Yes.

306. A: At that time, when you walked out to the living room, how did you find her conscious level?

307. B: It seemed that she had passed out already.” [5]

21.  To assist him in strangling his wife the applicant put on a pair of gloves which he said he had taken from his workplace.  He described his use of the gloves as follows:

“ 241. B: Then I, I, I, first -- after slapping her once, punching her once, she fell onto the bed, I then strangled her, for around -- I can’t quite remember, may be around ten odd to twenty -- after ten odd seconds, I slapped her once again and further punched her once.

242. A: Can you describe how you strangled her?

243. B: I then -- I -- because at that time I had put on a pair of labour gloves already, those anti-slip gloves, which I had taken from (my) workplace. Those were the anti-slip gloves for transporting the goods, I had put on the gloves (and) was strangling her.

244. A: You mentioned, you mentioned a pair of yellow -- er, anti-slip gloves. When did you put on this pair of gloves? This pair of gloves?

245. B: I probably put them on when I wanted to strangle her. When (I) hit her, may be I, I, I, I, I, I had not yet put them on, I put them on when I wanted to strangle her.” [6]

22.  In his second video record of interview, he admitted bringing these gloves home with the intention of using them to strangle his wife.  The relevant part of the interview is as follows:

“ 23. A: Okay. Alright, just now you mentioned that you had a pair of green er gloves at home, which were used during the occurrence of the case.

24. B: Yes.

25. A: So who put this pair of gloves at er er your home?

26. B: I brought them home from (my) workplace.

27. A: Why did you bring this pair of gloves home?

28. B: I intended to use (them) to strangle her when necessary.” [7]

The prosecution relied on this admission as clear evidence of premeditation and also on the following description by the applicant in his first video record of interview of how he had planned to kill his wife:

“ 74. B: … In fact, earlier on I had planned at (my) workplace two days ago that if she, she’s back, if she -- if there’s a displeasure, I would enter the grave with her. Earlier, Earlier on, two (or) three days ago at (my) workplace, I had written my daughter those, those -- [crying sound] wait a minute.

…

83. A: (You) can continue. It means that you were -- just -- you just said that, you meant that you already thought -- had such an idea a few days ago?

84. B: Yes.

85. A: Then what did, did (you) plan to do?

86. B: Planned to die together, enter the grave together.” [8]

23.  Of special significance to the defence of provocation is the fact that in this same video record of interview, the applicant did not claim that his conversation with his wife was emotionally charged.  But he did, however, explain why he was resentful of the way she was now treating him:

“ 196. A: Er, you, er, had a quarrel with your wife. Can you state the content of you, your quarrel more precisely?

197. B: Very simple, I asked, how this, this incident was going, which was asking her about the divorce, she said, ‘I have filed for it on my own, I don’t care if you agree or not.’ Then I was inflamed.

198. A: At that time your wife -- er, the condition or her emotion …

199. B: She was sitting there, leaning against the window.

200. A: How was her emotionally at that time?

201. B: Emotionally, she -- (there’s) nothing special about her, she -- as she didn’t know that I, I might kill her, she didn’t know, she was only normal, giving (me) the cold shoulder, ‘I am like this, I, I, I am proceeding to divorce, (we) are about to get divorced soon.’ That’s what (she) meant.

202. A: You just mentioned that you might kill her, what did it mean?

203. B: It meant that she didn’t know I would -- because I previously had never -- I -- actually I had been pampering my wife a lot. For so long, I, in (our) marriage for ten years old, I did all the housework, she, she, she, returned ‌… [Indistinct] … didn’t have to do anything. I prepared the meals, do the laundry, all of them, I did all of them. I basic -- actually had been pampering my wife, but I really couldn’t accept that fact. So … [Indistinct] … Once, once inflamed, (I) took no heed of anything, in fact I was once … [Indistinct] … She in, insisted to be with that man, like that.

204. A: Okay, er, then, you -- you just mentioned that, you also, er, had slapped her, [B: yes] and, er …” [9]

24.  In respect of the suicide notes the applicant confirmed that they were all written in the two to three days prior to him killing his wife.  In his second video record of interview, he was asked about these notes and he explained that he had amended them from time to time at his workplace before bringing them home on Friday, 5 August 2016.  He later claimed in his evidence that the writing on the first page of one of the notes, where he referred to the burial arrangements for himself and his wife, was added by him when he was still in his flat after he had killed her.  But he made no mention of this significant amendment to this note when discussing in this record of interview how he had, from time to time, made amendments to the notes whilst at work.  The relevant part of the record of interview is as follows:

“ 30. B: About two to three days before (the incident), I was idling at (my) workplace, I just jotted down those, those things my daughter should do, so on and so forth, (I) just wrote slowly, (if I wrote) something wrong, I just took another piece (of paper) to write again, and so on, (I) had amended (it) a few times.

31. A: You mean, after writing (it) on the same day …

32. B: Er, maybe the next day.

33. [Clearing throat sound]

34. B: That is, it’d been probably, probably written three days before (the incident), and something’s (found to be) wrong, (I) would add to, just add what (I) came up with to it the next day, if it could not be added, I just made a new one.

35. A: So where is each correction?

36. B: It …

37. A: That is, where are the corrections made?

38. B: Corrections, if it it -- you see, there are some coloured pens of different colours on this one, I u-used different pens, that is, when (I) thought of something, (I) just added to it. Actually, I just -- most of them are the additions (I) made when (I) thought of my daughter er what (she) should do.

39. A: So when did you bring these letters home?

40. B: I brought (them) home on Friday night.” [10]

1.5  The defence case

25.  The applicant elected to testify at trial.  The gist of the defence case was that the applicant had not planned to kill his wife, that he lacked the intention to do so and her death was the consequence of the applicant doing an unlawful act to his wife, without an intention to kill her or cause her grievous bodily harm, or alternatively, with that intention, but whilst either suffering from an abnormality of mind, or having been provoked.

26.  Regarding the admissions made in his video records of interview,the applicant testified that he had given untruthful information in them.  He explained that the Station Sergeant threatened to beat him if he did not make admissions and he was coached by the police to say the things he said in the interviews.  He also claimed that he was mentally and physically unfit to be interviewed at that time and that his rights in custody were never explained to him.  The defence urged the jury not to rely on the contents of the video records of interview.  It should be noted that the defence psychiatrist testified that when he interviewed the applicant, the applicant did not mention the Station Sergeant threatening to beat him but asserted that the threat was to carry out a case reconstruction if he, the applicant, did not cooperate.  

27.  The applicant testified at court that his wife and daughter came to live in Hong Kong by a one-way permit in 2002.  He described the family relationship as being good until he suspected his wife was seeing another man. On 30 June 2016, his wife told him that she wanted a divorce.  A quarrel ensued and the applicant said he thought of committing suicide.

28.  His wife went to China on 5 July 2016 and remained there until 6 August 2016.  During this time, the applicant said he could not sleep every night and thought of committing suicide.  He withdrew from seeing his family and suffered from a low mood.  He felt ashamed of himself as his wife was seeing another man.

29.  On 6 August 2016, having waited for his wife to return home, the applicant spoke to her about the divorce and an argument followed.  The applicant said she praised the man she met in China as being a person with a good financial basis and a good choice to have further development.  She blamed the applicant for being old, ugly, wearing ordinary clothes and not being able to satisfy her sexually and financially.  She said that even a blind man would know whom to choose between the applicant and the man from China.  Madam Tong also told the applicant that she would not return the ownership of the flat to him and he and their daughter could apply for public housing. 

30.  As his wife had previously promised to return to him the ownership of the flat, he became very crazy as it seemed to him that his whole world had fallen down.  He described himself as being very angry and his mind as being blank at that time.  He emphasized that his mind was blank when he strangled his wife and he never intended to kill her. 

31.  The provocative words allegedly spoken by Madam Tong were never mentioned by the applicant in his video records of interview and he explained that this discrepancy was due to him feeling regretful and guilty at the time he was being interviewed and wanting to shoulder all responsibility for the death of his wife.

32.  In respect of his application of adhesive tapes to his wife’s mouth and nose, he testified that he did it in order to prevent his wife from screaming.  This was contrary to the explanation he had given in his video records of interview which was that it was done to make sure that she could not breathe.

33.  In respect of the notes which the applicant had admitted in his video records of interview to have written two to three days before the incident, the applicant testified at trial that the instruction regarding the deceased’s and his burial arrangements was added to the notes after he killed his wife.  This instruction was written on the first five lines of the page, on the upper part of the paper above the existing writing which he admitted had been written by him two to three days previously.  When asked to explain this, the applicant said he did not understand why he did not use up the whole page when he first wrote on the paper and why he had left space at the top.  This part of his testimony was consistent with what he had told the defence psychiatrist Dr Wong, but not with what he had initially told the Government psychiatrist, Dr Siu.  Although he later changed what he told Dr Siu, he at first gave her an account of these notes that was consistent with what he had said in his video records of interview.

34.  When the applicant was asked in cross-examination the reason why he included in the notes information relating to the MPF and bank accounts of his wife if he had no intention then to kill her, he simply answered that he could not explain this.

1.6  The expert psychiatric evidence

35.  There were three medical experts called in the trial.  They were Dr Lee Hing Wah (“PW9”), Dr Siu Wei Man Bonnie (“PW15”) and Dr Wong Yee Him (“DW2”).  Drs Lee and Siu were called by the prosecution and Dr Wong by the defence.  As their evidence related primarily to the defence of diminished responsibility whose rejection by the jury is not the subject of appeal, we shall not discuss it in great detail.

36.  However, apart from the defence of diminished responsibility the psychiatric evidence had relevance in two other areas.  The first was the applicant’s fitness to be interviewed when he participated in the two video records of interview.  The second was the credibility of the applicant’s testimony at trial which was in conflict with his video records of interview and which the defence sought to persuade the jury to accept in preference to the contents of those two interviews.  Hence, it became quite significant as to what he told, or failed to tell, the three doctors in the course of his various interviews with them.

37.  Dr Lee interviewed the applicant at the hospital for about an hour after the applicant was arrested.  He confirmed his diagnosis that the applicant was suffering from an adjustment disorder with depressed mood and that he had prescribed anti-depressant medication to enable the applicant to sleep better. 

38.  Dr Lee expressed the opinion that the applicant was mentally fit for interview on 7 August 2016.  After watching the video records of interview of the applicant, he maintained his view that the applicant had been mentally fit for interview because the applicant was seen to recover quickly from the instances of emotional upset that occurred during the interviews.  He observed that these instances were transient and of only short duration.  The applicant was sober, calm and tranquil, and the impact of his cognitive function did not affect the course of the interview.   

39.  Dr Siu compiled three psychiatric reports on the applicant and examined and interviewed him 43 times from 18 August 2016 to 22 January 2018.  She was of the opinion that the applicant had suffered from depressive episodes of, at the most, moderate severity, at the time of the offence but this would not have affected his rational judgement and thinking.

40.  Although Dr Siu said that the applicant was forthcoming in the interviews with her, the applicant did not tell her about the provocative words allegedly spoken by his wife despite her asking him specific questions as to what his wife had actually said at the time of the offence. 

41.  Nor did the applicant tell her that he taped his wife’s mouth and nose to stop her from screaming.  To the contrary, he told her that he taped her mouth and nose to ensure that she could not breathe.

42.  Dr Siu agreed that the act of the applicant’s wife divorcing him had a great impact on, and was a great stressor to, the applicant.  She was ofthe view that even with the information which the psychiatrist for the defence had put down in his report as having been related to him by the applicant but which the applicant had not told her, her diagnosis would still be the same.

43.  Dr Wong interviewed the applicant only once for about 2 hours and 45 minutes and not until 14 November 2017, some 15 months after the killing had taken place.

44.  He reported that the applicant began to feel depressed since May to June 2016.  The depression worsened and he also felt a chest-tightening sensation when he received the letter from his wife’s lawyer regarding the divorce.  The applicant no longer enjoyed anything, suffered from insomnia and felt unworthy and useless and thought about his shortcomings.  The applicant also told Dr Wong that his mind was very confused and he became overwhelmed with sad thoughts and he was numb at the time of the offence.  The applicant did not tell Dr Wong that he strangled his wife but only that he covered her mouth.

45.  Dr Wong was of the opinion that the applicant had been suffering from depressive episodes since May 2016 and was likely suffering from depressive symptoms of a severe intensity which had worsened in intensity by the series of events he experienced on 6 August 2016.  He said that at the time of the offence, the applicant’s mind was overwhelmed with depressive and suicidal thoughts which affected his ability to make rational judgements since his thinking would have been excessively pessimistic and self-destructive.  With his mind being blank or confused, the applicant’s ability to focus on his thoughts would be severely affected and he would have been unable to focus and think rationally.  Dr Wong, however, agreed that if the provocative words allegedly said by the applicant’s wife were never said, it would affect his assessment of the severity of the applicant’s depressive episode.  Dr Wong agreed that there were insufficient criteria for a diagnosis of a depressive episode of a severe degree if a particular psychiatric guideline for the diagnosis of mental illnesses, known as the ICD-10 guideline, was strictly followed.

2.     The judge’s summing-up

46.  As the grounds of appeal concern only the defence of provocation we shall refer only to what the judge said in his summing-up on this matter.

47.  The judge provided the jury with a typed handout of his directions on the law in relation to murder, manslaughter by an unlawful act, diminished responsibility and provocation.  The applicant complains about what the judge said in both his summing-up and the typed handout in a narrow area relating to the defence of provocation.

48.  On the question of whether the applicant was provoked the judge highlighted what the applicant had told, and failed to tell, the three psychiatrists, the contents of the video records of interview and the testimony of the applicant.

49.  On the assumption that the jury found that the applicant was or might have been provoked he directed them on the second question relating to the defence of provocation saying:

“ … But if you conclude that the defendant was or might have been provoked in a sense which I have just explained, you must go on to ask yourself this further question, the second question: whether the conduct of the deceased, Madam Tong, was such as to cause an ordinary and sober person of the defendant’s age and sex to lose control and to behave as the defendant did.” [11]

50.  He went on to direct them on what was meant by “an ordinary person”.  He then said:

“ In deciding whether an ordinary 59-year-old man, the defendant, might have done what the defendant did, you must decide what the degree of provocation was to the defendant.” [12]

51.  The judge referred to the evidence that was relevant to this issue and then directed the jury:

“ … Once you have decided how serious the provocation was to the defendant you then decide whether a 59-year-old man, that is the age of the defendant, was with ordinary powers of self-control may have succumbed to that level of provocation and lost his self‑control and had done what the defendant did.

All right, we go back to the handout, paragraph 7. Therefore, when considering this question you must take into account everything which was done and/or said according to the effect which, in your opinion, it will have on an ordinary person. If you are sure that what was done and was said by the deceased would not have caused an ordinary sober person of the defendant’s age and sex to do as the defendant did, that is, strangle her, Madam Tong, the prosecution will have disproved provocation. Then providing the prosecution has made you sure of the elements or the ingredients of murder, your verdict will be guilty of murder subject to the defence of diminished responsibility.

If, on the other hand, your answer is that what was done and/or said would, or might, have caused an ordinary sober person of the defendant’s age and sex to do as he did, your verdict will be not guilty of murder but guilty of manslaughter by reason of provocation.”[13] (Emphasis added.)

52.  The italicised words are the subject of the grounds of appeal, it being complained by the applicant that the judge should not have made any reference to strangulation, ie the means by which he killed his wife.

53.  These oral directions followed very closely those contained in the typed handout.  Thus, in paragraph 7 of the handout the judge refers to strangling the wife after mentioning the words “do as he did”, using the same language that is in the italicised part of his direction quoted in paragraph 51 above. 

54.  The judge again referred to the second question after discussing the seriousness of the applicant’s depression, explaining to the jury how they should approach it as follows:

“ Now, let us go to the second question under provocation. In fact, I have already explained that and given you the evidence which you may like to consider. The second question, in fact, is essentially a question for you, members of the jury, because it involves your assessment of how an ordinary man would respond to the degree of provocation you assess the defendant felt he faced. In other words, how serious was that provocation to the defendant at the time he did that thing. You have got to assess that.” [14]

3.     The Perfected Grounds of Appeal

55.  In the Applicant’s Perfected Grounds of Appeal Mr Hanif Mughal, counsel for the applicant, advances four inter-related grounds.  They are:

(i)  the judge erred in his direction relating to the construction of the words “do as he did” that appear in section 4 of the Homicide Ordinance, Cap 339;

(ii)  the judge erred in referring to the precise method of killing rather than in accordance with what was said by the Court of Final Appeal in its judgment in HKSAR v Liang Yaoqiang [15];

(iii)  by the judge’s reference to the precise method of killing, the jury may have been “erroneously led into the ‘mental gymnastics’ in trying to grade degrees of provocation and degrees of reasonable retaliation to such provocation with the test of the magnitude of the response as stated in ground 2 above was designed to avoid.” [16]; and

(iv)  by reason of the above the conviction is unsafe and unsatisfactory.

56.  These four grounds essentially constitute one complaint, namely, that when directing the jury on the defence of provocation the judge erred in specifically referring to the actual mode of the killing, as set out in the italicised part of the quotation in paragraph 51 above, which created the risk that the jury might have engaged in the impermissible line of reasoning referred to by the Court of Final Appeal in its judgment in Liang Yaoqiang.

3.1  The applicant’s submissions

57.  Mr Mughal submits that the reference to the mode of killing was contrary to the judgment of the Court of Final Appeal in Liang Yaoqiang where it was held that the words “do as he did” should be construed as meaning “killing simpliciter” without reference to the actual method of killing.  Mr Mughal argues that the judge erred in referring the jury specifically to the precise mode of the killing rather than directing them in accordance with the test formulated in Liang Yaoqiang.  This test requires that the jury should consider whether in light of the gravity of the provocation on a person in the position of the defendant but with ordinary powers of self-control to be expected in society today, that person might have formed the intention to kill or cause grievous bodily harm to the victim and have acted on that intention.

58.  Mr Mughal further submits that in referring the jury specifically to the precise mode of the killing, the judge irretrievably linked the words “do as he did” to the actual acts committed by the applicant in killing his wife.  This created the risk that the jury in determining whether the prosecution had rebutted the defence of provocation would assess the proportionality of the response by reference to the acts committed by the applicant.  This risk became stronger, he argued, because the erroneous reference to strangling was repeated in the written handout which the jury would have had before them in the course of their deliberations.

59.  He accepts that there is nothing in the cross-examination of the applicant or in the speeches of counsel which would give rise to, or exacerbate the risk of, the jury engaging in the impermissible line of reasoning which underlay the Court of Final Appeal’s construction of the words “do as he did”. 

3.2  The respondent’s reply

60.  Ms Jasmine Ching, Senior Public Prosecutor, appeared for the respondent both at trial and on appeal.  She submits that the judge’s directions on provocation completely tallied with Specimen Direction 51 of the Specimen Directions in Jury Trials issued by the Hong Kong Judicial Institute.[17] She argues that the judge’s direction must be read in the context of the summing-up on provocation as a whole.  She submits that the judge’s words “that is, strangle her” were simply giving a blanket description of the act of killing, without going into any details, and this would be unlikely to cause the jury to embark on the impermissible line of reasoning as set out in Liang Yaoqiang.

61.  Ms Ching emphasized that the prosecution case was that the killing of Madam Tong was a premeditated act and the claim of provocation by the applicant was simply a recent fabrication.  Given the way the prosecution presented its case, the general description of the act of strangling by the judge would in no way affect the jury in its consideration of the issue of provocation.

62.  Ms Ching distinguished the mode of the killing in the present case from the frenzied attack that took place in Liang Yaoqiang which involved a brutal killing in which 213 cut wounds were inflicted on the deceased.  The concern in that case being the risk the jury would be “led into thinking that killing by inflicting 213 wounds would deprive the accused of the provocation defence, whereas killing by some lesser number of wounds would not.”[18]

63.  Furthermore, this was a case where, given the credibility issues relating to the applicant’s testimony, it is likely that the jury was not persuaded that the provocative words were spoken and that the applicant was in fact provoked.

4.     Discussion

64.  Mr Mughal’s submission relies entirely on the Court of Final Appeal’s judgment in Liang Yaoqiang.  That decision addressed two key issues in relation to provocation, the second of which was raised by the court itself. It is only this second issue which is relevant to this appeal.

65.  The defence of provocation developed at common law but was subsequently modified, but not codified, by statute.  In Hong Kong the statutory provision is section 4 of the Homicide Ordinance (Cap 339) which provides as follows: 

“ 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.)

66.  The second issue which the court was called upon to resolve was the construction to be given to the words “do as he did” in section 4.  This second issue arose in the course of hearing the appeal and the court exceptionally granted leave to appeal in respect of it by means of the following further question:

“ Whether in directing the jury in relation to the question in s.4 [of the Homicide Ordinance], Cap.339 as to whether the provocation was enough to make a reasonable man do as the defendant did, it may in certain cases be incumbent on the trial judge to direct the jury that the words ‘do as he did’ refer to the formation of an intent to kill or cause really serious bodily harm rather than the precise form of physical reaction? If so, whether the present case is such a case?”[19] (Emphasis added.)

67.  In answering this question the court was responding to the following submission:

“ 27. In relation to the ‘do as he did’ question, adopting the point identified in the further question of law set out above, it was contended on behalf of the appellant that in cases where the precise form of the physical reaction by the defendant to the provocation is of an extreme or unusually prolonged or violent nature, it is incumbent on a trial judge to direct the jury in certain cases that the words ‘do as he did’ in s.4 of the Homicide Ordinance means the forming by the defendant of the intent to kill or cause really serious bodily harm, rather than the precise form of the physical reaction. …”[20]

68.  The second question, and this submission in response to it, was prompted by the extreme form of retaliation that the provocation in that case induced in Liang Yaoqiang.  This can be seen from the following summary of the forensic evidence from the judgment of Fok PJ, who gave the judgment of the court:

“ 2. … An autopsy report prepared by a forensic pathologist stated the cause of Madam Yeung’s death to be multiple cut wounds leading to death as a result of profuse haemorrhage and damage to the vital organs. The evidence was that there were at least 213 cut wounds all over her body and also signs of manual strangulation, which may have contributed to her death. The forensic pathologist agreed with the appellant's trial counsel that the nature of the attack and the nature and number of wounds indicated ‘a frenzied attack’ on Madam Yeung.”[21]

69.  In analysing how the words of section 4 should be construed, Fok PJ recognised that there was ambiguity in the meaning of “do as he did”, saying:

“ 68. The words ‘do as he did’ in s.4 are inherently ambiguous: ‌… There is a range of meanings that they could convey, namely that the provocation was sufficiently grave to cause a person with ordinary powers of self-control:

(1) To lose self-control (‘the loss of self-control meaning’);

(2) To kill the victim (ie to form the intent to kill or cause grievous bodily harm and act on that intent) by whatever means (‘the killing simpliciter meaning’);

(3) To kill the victim using the means that the defendant did, eg by stabbing or shooting or strangulation (‘the means of killing meaning’);

(4) To kill the victim in exactly the manner the defendant did, eg by six shots of the gun or 213 chops of the knife (‘the precise method of killing meaning’).”[22]

70.  Fok PJ discounted meaning (1), the loss of self-control meaning, because on a proper construction of “do as he did” the words are not limited to mean “that the defendant must have lost his self-control and no more.”  The court went on to debate meanings (2), (3) and (4), which involved the act of killing but with different degrees of specificity.[23]

71.  Fok PJ resolved the issue by answering the question as follows:

“ 114. In the light of the context and purpose of s.4 and the underlying policy of the law to mitigate the penal consequences of a killing carried out in the frenzy of a loss of self-control, meaning (2) (the killing simpliciter meaning) provides the most logical and readily understandable meaning of the words ‘do as he did’. This requires the jury to consider whether, in the light of the gravity of the provocation on a person in the position of the defendant but with the ordinary powers of self-control to be expected in society today, that person might have formed the intention to kill or cause grievous bodily harm to the victim and have acted on that intention. This is a simpler test in which the magnitude of the response is absorbed into the evaluation of whether the provocation was sufficient to cause a person with ordinary powers of self-control to lose that self-control to the point of forming the intent to kill or cause grievous bodily harm and acting on that intent. It avoids the need for illogical and extremely difficult mental gymnastics on the part of the jury in trying to grade degrees of provocation and degrees of reasonable retaliation to such provocation. The defence of provocation is neither intended to be, nor capable of being, a matter of scientific measurement. Rather, it is intended that juries apply their common sense to the evidence to determine the result in any given case.

D.4 The impermissible line of reasoning

115. In view of the proper construction of the words ‘do as he did’ as set out in Section D.3 above, there is a risk that, without a proper direction, the jury may embark on a line of reasoning that would, on that construction, be impermissible. Thus, the line of reasoning represented by the prosecution's closing speech to the jury in the appellant's original trial (see [85] above), which asks it to reason that: (a) notwithstanding that he was in fact provoked to lose his self-control; (b) the scale of the retaliation was out of proportion to the provocation offered; so that (c) the objective question should necessarily be answered against him; is an impermissible line of reasoning. The jury should not be led into thinking that killing by inflicting 213 wounds would deprive the accused of the provocation defence, whereas killing by some lesser number of wounds would not.

D.5 Answering the ‘do as he did’ question

116. The ‘do as he did’ question does not ask if there was a misdirection by the Judge in the present case and, as will be evident from Section A.3 above, the Judge did not suggest to the jury that there was any requirement of reasonably proportionate retaliation. Instead, the Judge directed the jury in accordance with the language of s.4 of the Homicide Ordinance.

117. However, what the ‘do as he did’ question does raise is the broader question of whether it is incumbent on a judge to give the jury directions in cases where there is a risk that the jury might pursue the impermissible line of reasoning described in Section D.4 above. The short answer to that first part of the ‘do as he did’ question is that it is incumbent on a Judge to direct a jury in terms that will instruct them not to do so since that would be a line of reasoning inconsistent with the proper construction of s.4.”[24]

72.  In view of that construction of section 4, it is impermissible for a jury to reason that: (a) notwithstanding the defendant was in fact provoked to lose his self-control, (b) the scale of his retaliation was out of proportion to the provocation offered, so that (c) the objective question to be asked, namely, whether the provocation was enough to make an ordinary man do as the defendant did, in assessing whether the defence of provocation was made out, should necessarily be answered against him.

73.  However, Fok PJ made it clear that the issue does not arise in every case involving provocation.  The issue only arises when there is a real risk that the jury might adopt this impermissible line of reasoning and when such a real risk exists the trial judge should give a suitable direction to counteract it.  Fok PJ explained how a court could assess whether, in a particular case, there was such a risk of the jury engaging in the prohibited form of reasoning and that the case was, therefore, one requiring an additional direction.  He said :

“ The second part of the ‘do as he did’ question asks whether the present case is such a case. The answer to that question lies in whether the nature and extent of the homicidal act in a given case is such that might lead to the impermissible line of reasoning. It also depends on the course of any cross-examination of the defendant and the content of the closing speeches of counsel. This question must therefore be answered on a case by case basis …”[25]

74.  The only other occasion on which the Court of Final Appeal has addressed the meaning of “do as he did” in section 4 of the Homicide Ordinance is HKSAR v Tam Ho Nam (No 2) [26] when it followed and applied its earlier decision in Liang Yaoqiang.   In this case, the killing of the victim was the result of a frenzied attack with a chopper resulting in at least 50 cut wounds to her body.  The prosecution’s cross-examination of the appellant focused on the precise form and extent of his retaliation in the face of the victim’s allegedly provocative actions and words.  This theme was revisited in the prosecution’s closing speech, in particular in the following extract from that speech shortly where the prosecutor focussed on the scale of the retaliation, saying:

“ Would an ordinary person lose control and use a chopper to chop her to death? Chop her over 40 times while she was lying or crouching in the lower bunk. Use your common sense and your collective experience of life. You would know an ordinary person would not do as he did.” [27]

Fok PJ, in giving the judgment of the court, said of this passage:

“ This part of the prosecution’s closing speech clearly invited the jury to reason that a person with ordinary powers of self-control might have had a range of reasonable reactions in the face of Lau’s [ie the victim’s] alleged provocation but would not have chopped her to death by inflicting over 40 cut wounds. The scale of the actual retaliation by the appellant to the provocation was used as a means to suggest that the response to it went beyond that to which a person with ordinary powers of self-control would have resorted.”[28]

75.  Fok PJ also pointed out that the risk of the jury adopting this impermissible line of reasoning was exacerbated in that case because defence counsel had relied on the mode of killing as evidence relevant to the first question, ie the subjective question of whether the defendant’s actions were due to a sudden and temporary loss of self-control.[29]

76.  In respect of this applicant’s trial it is clear, as Ms Ching points out, that the prosecution based its case on premeditation.  The focus of Ms Ching’s closing address was on the evidence of premeditation and the evidence which undermined the credibility of the applicant’s testimony at trial.  The two are related as they are opposite sides of the same coin.  The applicant denied premeditation and, contrary to his admissions in his video records of interview, asserted a sudden and temporary loss of control based on provocative acts by his wife.  Thus, from the prosecution’s perspective, this case was, in terms of the defence of provocation, all about the first question, namely whether the applicant was provoked, and not the second question of whether the provocation was enough to make an ordinary man do as the defendant did.  This is apparent from what Ms Ching said in her closing speech where, on the issue of provocation, she only referred to the first question of whether the applicant had been provoked:

“ You recall, to be provoked the deceased has to do or said or do and said, both act, that provoke the defendant so that he lose his self-control. It is my submission that Madam Tong had did nothing to provoke him. So, the defence of provocation just did not make out.”[30]

77.  We further note that when defence counsel referred to the means of killing he also related it to the issue of premeditation.  He said:

“Now, people who plan murders, generally speaking we’re talking knives, guns if they’ve got the wherewithal to get them which is unlikely here, some sort of bludgeoning instrument or something of that sort, or rat poison or something of that sort.

…

On the whole, strangulation is something that happens spontaneously. It’s something that you would have thought if somebody was planning to kill someone else, this is not what they would plan. You may well think they would plan something better and more deadly than this because this of itself, the gloves of itself, can’t really take it that much further. I mean if you’re planning to strangle somebody, your hands are as good as anything.”[31]

78.  Of course, a consideration of the actual mode of killing was relevant to the jury’s determination of whether at the time he committed his unlawful assaults upon his wife the applicant had an intent to kill or to cause grievous bodily harm.  On this issue, defence counsel had this to say:

“ But because Mr Ho said that his mind had gone blank, literally if you think this might apply, that he literally was not thinking at all, his mind was blank, then his Lordship will direct you on unlawful act manslaughter.

Basically what it does, it invites you to seriously consider the possibility that he simply strangled her, put the tape on her without any deliberate considered intention to kill or cause serious harm; objectively, it is an act which is likely to cause some harm but that he was just acting without thinking at all.

Now, that is a matter for you, and his Lordship has to direct you on that with regard to what Mr Ho said about having gone blank. But I don’t have anything else to add to what I’ve said to you about unlawful act manslaughter. If you think that is a possibility, then you can reach a verdict of manslaughter based on an unlawful and objectively dangerous act.”[32]

79.  With all the issues the jury had to decide it was inevitable that they would have to have regard to the means the applicant employed to cause the death of his wife.  It is not that they could not have regard to it at all; rather it is whether they might have allowed it to infect their determination of whether the provocation was enough to cause an ordinary person to form an intent to kill or cause grievous bodily harm. 

80.  The direction the judge gave was, in terms of the various meanings that the words “do as he did” in section 4 could have, a direction on meaning (3), “the means of killing meaning” and not meaning (4), “the precise method of killing meaning”.  In giving a direction on the third possible meaning of “do as he did”, the judge created a theoretical possibility that the jury might answer the “do as he did” element of provocation adversely to the applicant through an impermissible form of reasoning.  But within the context of the issues and factual circumstances of this particular case and the way the case was conducted, was there a real risk of this happening?

81.  We are not persuaded that there was.  Firstly, though still incorrect as a meaning to be given to the words “do as he did”, this direction makes the risk much less likely that the jury will engage in the impermissible form of reasoning than a direction on “the precise method of killing meaning”.  The emphasis on the particular acts the defendant employed to kill the victim is much less, and in the present case is further lessened by the marginal importance that the mode of killing had at trial in relation to the provocation defence.

82.  Secondly, as we have shown, the second question in the provocation defence was not a live issue in the trial.  We doubt very much that the jury ever had to reach it in the course of their deliberations but, of course, we cannot assume that.  However, the fact that it was not a live issue in the case explains why it did not feature in counsel’s speeches.  This consequence, that it did not feature heavily in counsel’s speeches is, as Fok PJ pointed out in his judgments in Liang Yaoqiang and Tam Ho Nam, relevant to the assessment by us of whether there was a risk of the jury engaging in the impermissible line of reasoning.  Here, the actual form of killing, as evidence either of sudden and temporary loss of control or as a proportionate response to the alleged provocation, did not feature in counsel’s speeches or in the summing-up of the judge.  Indeed, there is no discussion at all of the words “do as he did” by counsel.

83.  Thirdly, because the prosecution was not relying on the scale of retaliation being so out of proportion to disprove the defence of provocation, there was no focus by counsel or the judge on the individual acts of the applicant that formed the process of killing and the method of killing.  The judge’s reference to strangulation was very much an accepted and general description of the fact that it was the applicant’s unlawful acts upon his wife that caused her death.  It was not intended to, and in our view would not have had the effect of, reminding the jury, in a prejudicial way, of every individual act of the applicant that was part of his process of killing her. 

84.  Finally, strangulation does not carry with it the emotional and distressing overtones that may be associated with a wild, frenzied attack with a cutting or stabbing implement.  It is not such an extreme form of killing that it would necessarily create the risk that a jury might be so repulsed by it that they might conclude that no ordinary person would respond to the provocation in this way.

85.  The major concern that the courts must guard against is that it is not permissible to leave the jury with the impression that the retaliation by the defendant must be proportionate to the provocation offered.  This in essence is the impermissible line of reasoning that Liang Yaoqiang seeks to ensure does not take place.  Hence, to “do as he did” falls within meaning (2), the killing simpliciter meaning, ie to form the intent to kill or cause grievous bodily harm and act on that intent.  In other words, it is a reference to the act of the defendant losing his self-control to the point of forming a murderous intent and acting on it. 

86.  Thus, in our view, this is not a case, given the facts and circumstances and the relevant issues at trial, where there was a real risk of the jury adopting the impermissible line of reasoning.

5.     Disposition

87.  For these reasons we refuse the applicant leave to appeal his conviction.

[1] Appeal Bundle, page 81N–P.

[2] Appeal Bundle, page 28.

[3] Appeal Bundle, page 21, at paragraph 1(b).

[4] Appeal Bundle, page 151, counter 49.

[5] Appeal Bundle, pages 165 – 168.

[6] Appeal Bundle, pages 164 – 165.

[7] Appeal Bundle, page 238. 

[8] Appeal Bundle, page 156.

[9] Appeal Bundle, pages 162 – 163.

[10] Appeal Bundle, pages 238 – 240.

[11] Appeal Bundle, page 76F–H.

[12] Appeal Bundle, page 76O.

[13] Appeal Bundle, page 77C–O.

[14] Appeal Bundle, page 78A–E.

[15] (2017) 20 HKCFAR 1

[16] Paragraph 3 of the Applicant’s Perfected Grounds of Appeal Against Conviction.

[17] We note that Specimen Direction 51 does not make any reference to Liang Yaoqiang or to the suggested direction by the Court of Final Appeal at paragraph 124 of its judgment. 

[18] (2017) 20 HKCFAR 1, pages 48-49, at paragraph 115.

[19] Ibid, pages 15-16, at paragraph 22.

[20] Ibid, page 17.

[21] Ibid, page 7.

[22] Ibid, pages 32-33.

[23] Ibid, page 33, at paragraphs 69-70.

[24] Ibid, pages 48-49.

[25] Ibid, page 49, at paragraph 118.

[26] (2017) 20 HKCFAR 414

[27] Ibid, page 421, at paragraph 16.

[28] Ibid, page 421, at paragraph 17.

[29] Ibid, pages 421-422, at paragraph 18.

[30] Appeal Bundle, page 349R-T.

[31] Appeal Bundle, page 376E-L.

[32] Appeal Bundle, page 380H-N.