HKSAR v. POON MAN SUM

CACC 152/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 152 OF 2014

(ON APPEAL FROM HCCC NO. 245 OF 2013)

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.  The applicant sought leave to appeal against his conviction after trial on 15 April 2014 by Deputy High Court Judge Wright and a jury of the murder of Ms Law Yuk Yu on 28 November 2012. At the hearing, we granted the application and, treating the hearing of the application as the hearing of the appeal, we allowed the appeal and quashed the applicant’s conviction. We said that we would give our reasons for so doing in due course. That, we do now.

2.  Having been convicted on his plea of guilty on arraignment, of the attempted murder of Mr Chan Tai Wai on 29 November 2012, contrary to Common Law and sections 159G and 159J(1)(a) of the Crimes Ordinance, Cap. 200, the applicant was sentenced to 12 years’ imprisonment.  The applicant gave notice of his application for leave to appeal against sentence in Form XI, which was filed with the Court on 5 May 2014.  However, at the hearing the applicant, who appeared in person in respect of sentence, informed the court that he abandoned that application, which was dismissed.

The Trial

3.  It was an admitted fact that the applicant killed Ms Law Yuk Yu (“the deceased”) on the 28 November 2012 at her home in Kwong Fuk Estate, Tai Po by stabbing her in the back with a fruit knife.  The forensic pathologist identified four stab wounds to the back of the torso of the deceased, two of 10 cm and, one of 11 cm and finally, one of not less than 8 cm in depth which penetrated into the lower lobe of the left lung.  The latter injury caused death, as a result of extensive blood loss and the partial collapse of the left lung.  A knife with an 11 cm blade was found buried in the back of the deceased at the site of the fatal wound when her body was turned over from the supine position in which the corpse was discovered.

4.  The applicant and the deceased had been in a “relationship” for about 11 months.  The applicant, the deceased and Mr Chan Tai Wai, who were respectively 30, 25 and 20 years of age, were all employed as security guards at Coastline Skyline, 12 Tung Chung, Waterfront Road, Lantau North.

5.  It was an admitted fact that on the afternoon of 29 November 2012, whilst in the employees’ changing rooms at Coastline Skyline, the applicant attacked the head of Mr Chan twice with a chopper and pursued him as he fled.  However, he was intercepted and subdued by a supervisor of the company for which they both worked.  Shortly afterwards, having been arrested and cautioned for wounding Mr Chan, the applicant said:[1]

“ He stole my girlfriend. The girl was killed by me already. I must chop him to death too.”

In answer to questions, the applicant went on to say:

“ I killed her yesterday afternoon in her home in Tai Po.”

He explained:

“ She was my girlfriend Law Yuk Yu. She lived in room 2211 Kui Wo House………….. I used a knife to stab her to death” .

The prosecution case

6.  It was the prosecution case as advanced by Mr Nicholas Adams that the applicant had killed the deceased as a result of his anger or rage arising out of his obsessive jealousy and possessive attitude towards the deceased, whereas he had attempted to kill Mr Chan out of revenge.

The defence case

7.  The applicant testified in the defence case and called his father as a witness.  Whilst he accepted that he had caused the death of the deceased with a fruit knife, he said that the first wound to her with the knife that he held had occurred accidentally.[2]  Of the other stab wounds, of which he said there were two, he said they were caused as he acted in self defence after the deceased seized hold of and squeezed his genitals.[3]

8.  The applicant said that having met the deceased in December 2011 he came to realize, whilst they were on holiday in Thailand in July 2012, that she was in constant contact with Mr Chan.  He argued with the deceased and asked her not to contact Mr Chan.  That relationship between the two of them was a source of friction thereafter in his relationship with the deceased.  He contacted Mr Chan, who promised that he would not come between them.[4]

9.  On 28 October 2012, the deceased informed him that she intended to terminate their relationship.  However, they both took leave for five days and went to the Mainland.  Nevertheless, eventually the deceased admitted that she continued to be in contact with Mr Chan.  On the fifth day, the deceased left the applicant, saying that she was returning to Hong Kong to see Mr Chan.

10.  The deceased posted a message on a social network site to the effect that they had broken up and deleted photographs of the two of them together.  Then, she informed him that she wished to have one month to herself to consider whether they should remain together.  The deceased said that he was very unhappy and angry, so much so that he intended to commit suicide.  But, he did not do so because of his father’s impending birthday.  However, the deceased informed him that she would resume their relationship.  Nevertheless, the applicant said that she remained in electronic contact with Mr Chan.

11.  On the night of 27/28 November 2012, he and the deceased argued on the telephone about their relationship.  On the morning of 28 November 2012, having failed to make contact with the deceased by telephone, notwithstanding having made about 40 attempts to do so, the applicant went to the deceased’s family home, but received no response to his banging on the door.  He left the premises, bought food and consumed vodka.  Then, the deceased telephoned him and informed him that earlier she had been asleep and that her telephone had been set to silent.  He bought her some food and arrived at her home at about 15:39 hours.  Having indicated that she intended to resume her sleep, at her invitation, the applicant joined her in bed.  However, she refused to allow him to hold her and rejected his requests that they resume their relationship.

12.  In response, he went to the sitting room, where he picked up a knife on the table.  In cross-examination, he denied that he had brought the knife to the premises, although he accepted that was the first time he had seen the knife in the premises.[5]  He wanted to kill himself.  Then, the deceased came out of her bedroom and, seeing him holding the knife against his throat, told him not to be so childish, to be more mature and not to ever threaten her with his own death.  In response to his protestations that things were very hard for him and his entreaty that she not play with him anymore, the deceased said:[6]

“ If you want to die, don’t die here, go somewhere else” .

13.  He thought that was very heartless and he felt very angry.[7]  He pointed the knife at the deceased.  He pursued her, as she retreated into her room trying to make a telephone call with the telephone she was holding in her hand.  He tried to snatch the telephone.  In the ensuing struggle, she pushed him onto the bed.  As he held the knife pointing upwards, she fell onto the bed as he pulled her towards him and the knife penetrated her back.  That was accidental.  She cried out for help.  Although he told her that he was sorry and that he would telephone for an ambulance, she kept shouting.  She looked crazy.  He did not want her to shout, so he placed his hand over her mouth in order to silence her.[8]  She grabbed hold of and squeezed his genitals.  In response, in self defence, he pulled the knife out of her back and stabbed her a second time.  He was in a rage.[9]  He stabbed her a third time.  She slipped to the floor.

14.  The applicant testified that he lifted the deceased from the floor and onto the bed.  He lay alongside her.  He believed that she was dead.  Then, he had a shower.  Later, he used her telephone to respond to some messages to the deceased, in which he gave misleading information purporting to be her, although he did not respond to incoming phone calls on that telephone.  He received and made incoming calls on his own telephone from and to his colleague Mr  Wong Yat Cheong, whom he met later at 23:40 hours at Costal Skyline.  Then, at about 20:58 hours, he left the flat and locked the door.

15.  Having returned to his own home in Tai Po, the applicant travelled to Tung Chung to meet Mr Wong and another friend, after which they went to a karaoke establishment in Mongkok.

16.  The following day, having slept at his own home, he took a chopper with him to work intending to kill Mr  Chan because he had ruined his relationship with the deceased and caused her to become heartless towards him.

The Summing up

17.  In his summing up, the judge directed the jury as to the law in respect of murder, self defence, provocation and diminished responsibility and provided them with written handouts.  First, he gave directions in respect of the ingredients of murder.[10]  Then, having regard to the applicant’s testimony that the first stab wound was inflicted accidentally, as she fell onto the bed, and that the fourth stab wound may also have been inflicted accidentally again when the knife was impaled in her back as he manoeuvred the deceased onto the bed from the floor, he directed them that if they were satisfied that the act which brought about the deceased’s death was or may have been accidental, then the applicant was not guilty.[11]

18.  Next, the judge directed the jury in respect of the issue of self-defence.  Then, the judge gave the jury directions in respect of the circumstances in which, notwithstanding their finding that the applicant was guilty of murder, by operation of the partial defence of provocation[12] and of diminished responsibility[13], the applicant would be guilty of manslaughter only.

19.  Three psychiatrists were called to testify as experts in the trial in respect of the mental condition of the applicant, namely Dr John Wong Yee Him, who was called by the defence, and Dr Amy CY Liu and Dr Bonnie WM Siu, who were called by the prosecution, in reminding the jury of their evidence, at the outset the judge provided a thumbnail sketch :[14]

“ Dr Wong diagnosed the accused as suffering from a major depressive disorder, single episode, current episode and moderate severity, which constitutes an abnormality of mind and expressed the opinion that the defence of diminished responsibility is available to the accused.

 Dr Liu, based upon her consultations with and observations of the accused, diagnosed him as suffering from adjustment disorder with depressive reaction at the time of the killing which, although it may be an abnormality of the mind, did not extend, in her opinion, to making the defence of diminished responsibility available to the accused.

 Dr Siu also diagnosed the accused as suffering from adjustment disorder with depression developing after the killing and expressed the opinion that the evidence available to her was insufficient to satisfy her that he suffered from anything more serious which would have made the defence of diminished responsibility available.”

20.  Then, having reminded the jury in some detail of their evidence and their respective opinions, the judge directed the jury of the relevance of that evidence to the issue of diminished responsibility:[15]

“ It is a matter for you, ladies and gentlemen, but you could conclude that whichever, if any, of Dr Wong on the one hand and Drs Liu and Siu on the other is correct in his or her diagnosis, their findings suggest that the accused was suffering from an abnormality of the mind, although the disease and the nature of that abnormality is in contention.

The question you will be asking yourselves, if you make that finding, is whether you further conclude that it is more probable than not that, at the time of the killing, the abnormality substantially impaired the accused’s mental responsibility for his acts, or was this simply a violent outburst of anger or rage driven by the accused’s jealous emotions in which the abnormality did not play a substantial role.”  [Italics added.]

Grounds of appeal against conviction

21.  In the Grounds of Appeal Against Conviction advanced on behalf of the applicant Mr Boyton submitted that the judge had erred in failing to direct the jury in respect of the special characteristics of the applicant, which affected the issues of loss of self-control and the gravity of the provocation to the applicant.  In particular, the judge failed to direct the jury that the psychiatric evidence was relevant to the issue of the applicant’s loss of self-control.  Further, the judge failed to remind the jury that both the psychiatric evidence and the evidence of the applicant himself was relevant to a consideration of the issue of the gravity of the provocation to the applicant in the context of their consideration of the second limb of his directions in respect of provocation.

22.  Next, it was submitted that the judge had erred in law in directing the jury that if they rejected the applicant’s evidence that he found the knife, with which the wounds to the deceased were inflicted, in the deceased’s home shortly before those wounds were inflicted and accepted the evidence of the deceased’s sister, Ms  Law Yuk Kwan, that the knife “had not been present in the premises prior to 28 November 2012…” it was open to the jury to infer “that the accused had carried the knife with him to the flat which, in turn, may assist you in regard to the issue of the accused’s intention.”[16]  That was not the evidence and it was not a permissible basis to draw any adverse inference against the applicant, let alone one that clearly went to the issue of intention in murder.

The submissions of the respondent

23.  Mr William Tam, for the respondent, acknowledged that in the summing up the judge invited the jury specifically to have regard to the evidence of the expert psychiatrists only in relation to the issue of diminished responsibility.  He did not do so specifically in relation to the issue of provocation.  Mr Tam conceded that there was psychiatric evidence that was relevant to the issue of whether or not the applicant was in fact provoked.  It was Dr Wong’s opinion that the applicant was suffering from a major depressive disorder and morbid jealousy, which was a symptom well-known to provoke violence, and that if taunted and teased that might impair his ability to control himself.[17]  Further, the applicant had suicidal intentions in consequence of those conditions.  It was Dr  Liu’s evidence that the applicant was suffering from an adjustment disorder, which meant that he “cannot adjust to stressors”.[18]

24.  Mr Tam acknowledged that the judge ought to have directed the jury to take into account the evidence of those conditions in determining whether or not the applicant lost self-control and the gravity of the provocation to the applicant, namely in the first limb and the first ingredient of the second limb respectively of his directions to the jury.  The taunts by the deceased, of which the applicant testified, could be construed as directed at a characteristic of the applicant, namely his suicidal intentions.  The judgment of this Court in HKSAR v Lo Chun Siu supported that position.[19]  There, the court determined that the same judge erred in directing the jury in relation to the issue of provocation, to disregard the testimony of expert witnesses that the appellant suffered from attention deficit hyperactivity disorder (“ADHD”).[20]  That evidence, to the effect that he was thereby more prone or predisposed to lose self-control, was relevant to the issue of whether or not the appellant lost self-control and in assessing the gravity of the provocation, namely on what could be construed as humiliating taunts that he was unable to obtain and retain employment and earn the necessary income to support himself and provide for his girlfriend and her unborn child.

25.  Notwithstanding those concessions, Mr Tam invited the court, if it accepted the concession was well made, to apply the proviso.

26.  Finally, Mr Tam submitted that the judge was entitled to direct the jury that it was open to them, if they were to reject the evidence of the applicant and to accept the evidence of the deceased’s sister that, having visited the flat regularly and within a few days of the killing, she had never seen the knife before.  In their consideration of that issue the jury was entitled to have regard to the undisputed evidence of the deceased sister, Ms  Law, that there was a fruit knife amongst the set of knives found in the premises.

A consideration of the submissions

27.  As noted earlier, in his summing up, the judge provided the jury with written handouts of his oral directions of law in respect of murder; self-defence; provocation and diminished responsibility.  Before doing so he confirmed with counsel that they were in the same form as the drafts provided to them earlier in the late afternoon of 10 April 2014, at the conclusion of all the evidence and in the absence of the jury.  Neither Mr Adams nor Mr Haynes, the latter representing the applicant at trial, raised any objection to those proposed directions.

28.  Of the relevance of past conduct leading to a provoking event, the judge said:[21]

“ Although provocation which reduces murder to manslaughter applies only if the act of the accused is committed suddenly, upon a provoking event, you should understand that you are not required to ignore past behaviour by the deceased since an incident which is trivial when examined in isolation might nonetheless be one which might cause a reasonable man to react explosively in the context of provocation over an extended period.”

29.  Of the first limb of provocation, he said:[22]

“ 1. You must ask yourselves whether the accused was provoked in the legal sense at all. A person is provoked if he is caused suddenly and temporarily to lose his self-control by things that have been said and/or done by the deceased and/or another person, rather than just by his own bad temper.”

30.  Of the evidence relevant to that issue, he said:[23]

“ In this case, it is suggested that there had been ongoing provocation in a number of respects, namely, the deceased’s friendship and communications with Chan at the same time as the accused; that his conduct had persisted despite requests to the deceased by the accused that she cease that friendship; that the deceased had indicated an intention to end her relationship with the accused; that on the day of the killing, the deceased had behaved in a heartless manner in telling him not to threaten her with suicide and that if he was serious, he should commit suicide elsewhere, all of which combined to provoke him to act as he did.” [Italics added.]

31.  Then, he directed the jury:[24]

“ If you are sure that the accused was not provoked in that sense, a defence of provocation does not arise and the accused is guilty of murder subject to the issue of diminished responsibility.”

32.  Next, the judge directed the jury in respect of the second limb of provocation:[25]

“ 2. If you conclude that the accused was or might have been provoked, in the sense which I have explained to you, you must ask yourself this question: was or may that conduct have been such as to cause an ordinary and sober person of the accused’s age and sex to do as he did?

An ordinary person is simply a person who has the powers of self-control to be expected of an ordinary, sober person who is of the accused’s age and sex. 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 would have on that ordinary person.

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

If you are sure that what was done and/or said would not have caused an ordinary, sober person of the accused’s age and sex to do as he did, the prosecution will have disproved provocation.  Then, providing the prosecution has made you sure of the ingredients of the offence of murder, and subject to the issue of diminished responsibility, your verdict will be guilty of murder.  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 accused’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.”

33.  All of those directions were contained in the written handout provided to the jury in respect of provocation.

34.  It is to be noted that, although the judge directed the attention of the jury to various pieces of evidence relevant to addressing the first limb, namely if the applicant had been provoked to lose his self-control, he did not invite the jury specifically to have regard on the issue of provocation to the psychiatric evidence in respect of his mental infirmity.  In that context, it is to be noted that when the judge began his review of the evidence of the three psychiatrists, he said “…it is time to turn to the psychiatrists’ evidence which relates directly to the issue of diminished responsibility”.[26]  [Italics added.]  By that stage the judge had reminded the jury at length of the applicant’s evidence, in particular that which was relevant to the issue of provocation.[27]  In fact, the judge reviewed the evidence of the three psychiatrists on the following day, after which the jury retired to consider their verdict.

35.  However, in his concluding remarks of the previous day the judge revisited briefly the evidence relevant to the issues of self-defence, provocation and intention.  Of the issue of provocation, he said:[28]

“ Although there is all the background history between the accused, the deceased and Chan, his testimony is that the final act of provocation of 28 November, the trigger which caused him to act as he did, was her dismissiveness, her heartlessness in regard to his threat to commit suicide. Once again, you will wish to have regard to that evidence when considering, in particular, whether the accused was provoked at all in the legal sense and, if so, was or may that conduct have been such as to cause an ordinary and sober person of the accused’s age and sex to act as he did.” [Italics added.]

36.  In those directions, for the first time, the judge directed the jury specifically to have regard to the evidence of both the background provoking conduct and the deceased’s heartlessness in response to his threat to commit suicide on the day of the killing in respect of both limbs of the provocation direction, albeit that he did not direct the jury, in respect of the second limb, that it was relevant to the gravity of the provocation to the applicant.  That additional direction was not reflected in the written directions in respect of provocation.  Further, the judge made no mention of the relevance of the psychiatric evidence.

37.  As noted earlier, at the conclusion of his review of the evidence of the three psychiatrists, whilst indicating that it was a matter for the jury, the judge suggested that if they accepted the evidence of any of the three psychiatrists that evidence suggested that the applicant was suffering from an abnormality of mind and that the issue was the degree and nature of that abnormality.[29]  The judge said that if the jury made that finding the issue was:[30]

“ .. whether you further conclude that it is more probable than not that, at the time of the killing, the abnormality substantially impaired the accused’s mental responsibility for his acts, or was this simply a violent outburst of anger or rage driven by the accused’s jealous emotions in which the abnormality did not play a substantial role. I do not think I can properly take the matter of the medical evidence any further for you.”

38.  Having received two written questions, in respect of the issue of provocation, from the jury after they had retired the judge gave further directions.  The questions related to the second limb of the directions.  Of the judge’s direction, “If you are sure that provocation would not have caused an ordinary, sober person of the accused’s age and sex to do as he did, the prosecution will have disproved provocation” the jury asked, “How about if you’re not sure?”.  The second question was as to the meaning of the word “may”.  The judge directed the jury:[31]

“ If you are not sure of that, you must consider whether what was done and/or said would or may have caused an ordinary sober person to do as he did.  In this context, the word “may” includes all reasonable possibilities.  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 would have on that ordinary person.

If you conclude that it would or may have caused an ordinary, sober person of the accused’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.”

The Law

39.  Section 4 of the Homicide Ordinance, Cap. 339 provides:

“ 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.”

40.  The courts have construed the provision consistently as giving rise to a subjective and an objective test.  Of the subjective test, Lord Nicholls, in the Advice of the majority of the Privy Council, the Attorney-General for Jersey v Holley said:[32]

“ in deciding whether this ingredient exists in the case all evidence which is probative is admissible. This includes evidence of any mental or other abnormality making more or less likely that the defendant lost his self-control.” [Italics added.]

41.  Of the objective limb, Lord Nicholls said:[33]

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

42.  In his judgment in the Court of Final Appeal in Ho Hoi Shing v HKSAR [34] Chan PJ cited that passage of the judgment of Lord  Nicholls with approval, noting that Lord Nicholls had adopted the comments made by Lord Hobhouse in his dissenting judgment the House of Lords in R v Smith (Morgan):[35]

“ …there are two elements in this aspect: first, the assessment of the gravity of provocation; and second, the assessment of how a person with ordinary power of self-control would react to provocation of that gravity. The first element involves a consideration of everything both done and said as required by s.4 of the Ordinance, and the second element involves a consideration of the accused’s conduct and whether a person with ordinary power of self-control would have reacted in a similar way. The accused’s characteristics that a reasonable person, i.e. a person with ordinary self-control may be taken to share, are not such characteristics as are inconsistent with reasonableness. The accused’s characteristics that the person with ordinary self-control may be taken to share are those which a reasonable person may have, e.g. having some physical impediment or deformity or something in one’s background that a person might be sensitive about, such as illegitimacy. If the provocation was directed to that sort of thing, the reasonable person may be taken to have had such characteristics.”

43.  In his judgment in R v Smith (Morgan), Lord Hobhouse said:[36]

“ It is common ground that s. 3 and the common law of provocation require two questions to be answered. The first is the factual, or as some prefer to call it the ‘subjective’ question: Was the defendant provoked, whether by things said or done to lose his self-control and kill? Since this is a factual question, evidence of any mental or other abnormality which makes it more or less likely that the defendant lost his self-control is relevant and admissible, as is any evidence concerning the defendant which helps the understanding or assessment of the evidence of what occurred. In answering factual questions all relevant evidence is in principle admissible. For such purpose it does not matter whether the evidence relates to something which would be described as a ‘characteristic’ of the defendant. Thus, evidence may be relevant and therefore admissible that the defendant was at the time very drunk or under the influence of a hallucinogenic drug. Such evidence may of course cut either way. It may show that anything said or done did not affect the defendant’s conduct which was simply due to his delusions. Or, it may show that something said or done which would not normally cause anyone to lose their self-control may have caused the defendant to do so.

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

44.  At the conclusion of his speech, Lord Hobhouse identified the constituent statutory elements of provocation:[37]

“ The law, as provided in s. 3 of the Act of 1957 and held in the authorities down to Luc Thiet, establishes that the constituents of provocation are as follows:

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

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

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

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

If some elaboration of the word ‘ordinary’ is thought necessary, it should be along the lines advised by Lord Diplock and used by Judge Coombe in the present case.  The phrase ‘reasonable man' although used in the section is better avoided as not assisting the understanding of the criterion ‘ordinary powers of self-control’.  The word ‘characteristics’ should be avoided altogether in relation to (d).  It is not used in the section.  It is alien to the objective standard of ordinariness and experience has shown that it is a persistent source of confusion.  Where relevant the age or gender of the defendant should be referred to since they are not factors which qualify the criterion of ordinariness.  But language which qualifies or contradicts such ordinariness must be avoided.  It is the standard of ordinary not an abnormal self-control that has to be used.  It is the standard which conforms to what everyone is entitled to expect of their fellow citizens in society as it is.”

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

45.  Whilst evidence of mental infirmity may be relevant and admissible in respect of the issues of the applicant’s loss of control and the gravity of the provocation to him, it is irrelevant and inadmissible and not to be attributed to the ordinary person for the purposes of the objective test.  In the advice of the majority of the Privy Council in Luc Thiet Thuan v The Queen, Lord Goff cited the conclusion of the House of Lords in R v Camplin with approval, namely:[38]

“ …there is no basis on which the mental infirmity on the part of the defendant which has the effect of reducing his powers of self-control below that expected of an ordinary person can, as such, be attributed to the ordinary person for the purposes of the objective test in provocation.”

Evidence of loss of self-control because of things said and/or done

46.  As noted earlier, in his evidence-in-chief, the applicant said that at the time the deceased emerged from the bedroom to find him holding a knife against his throat she had said, “Don’t be so childish, be more mature.  Don’t ever threaten me with your death.”[39]  He said that he told her that it was very hard for him, and he said “Don’t play me anymore”.  She said, “If you want to die, don’t die here, go somewhere else.”[40]  Of the effect on him, the applicant said:[41]

“ I feel very angry and I reckoned that she is very heartless, and then I looked at her and then I pointed the knife at her.”

47.  In cross-examination, the applicant said that the deceased had said :[42]

“ If you die, it’s your own business and your cheap life.”

He agreed with the suggestions that he found that provocative and that it had made him “very, very angry”.

48.  The applicant said that he had followed the deceased as she went back into the bedroom holding a telephone which he wanted to snatch from her grasp.　　They struggled.　　After the knife had entered her back accidentally on the first occasion, she squeezed his genitals.  He agreed that he was “in a rage” when he inflicted the second wound.[43]

The psychiatric evidence

49.  In reviewing the psychiatric evidence, the judge reminded the jury of Dr Wong’s opinion as to the state of mind of the applicant at the time of the offence:[44]

“ He expressed the opinion that, at the time of the offence, he was pretty sure that the accused was severely depressed. His mind, he said, was filled with sadness, negativism and pessimism. He displayed a lot of jealousy which was a symptom of depression. He had feelings of ambivalence which would have made his depression worse and this was demonstrated by the fact that he could not distinguish between loving and hating the deceased. The pain as a result of her grabbing his genitals would have affected his ability to think logically. He told you that, in his opinion, the accused was suffering from an abnormality of mind which he characterised as being morbid jealousy and depression.”

50.  However, the judge did not advert specifically to the opinion of Dr Wong, expressed at paragraph 51 of his written report dated 19 March 2014, as to the applicant’s mental state on the afternoon of 28 November 2012, namely:[45]

“ The intensity of his depression and morbid jealousy would have been intense when the defendant visited his girlfriend on the afternoon of 28 November 2012. He was apparently quite agitated the entire morning, as evident by him phoning her up over 40 times. When he went to see his girlfriend, he was met with further rejection. His depressive features and his morbid jealousy would have been further exacerbated by the scolding, ridicule and rejection by the deceased and then markedly worsened by the pain of being squeezed in the genitals by someone he loved. At the material time of the index offence, the Defendant’s mind was most likely overwhelmed by depression, pessimism, suicidal thoughts and morbid jealousy.” [Italics added.]

51.  In his evidence, Dr Wong testified:[46]

“ …when he went into the girlfriend’s flat, he was severely depressed….. his mind would be filled with sadness, hopeless thoughts, pessimism, negative thoughts. That would be all he was thinking. And then on top of that, he could have a lot of jealousy as well, which is a symptom of the depression and I term that morbid jealousy (.It?) is well known to be one of the symptoms that would provoke violence. So he had the depressive mind at that that (sic), being negative and pessimistic. Even being suicidal because of the depression, you will be thinking about suicide all the time as well.”

52.  Of the applicant’s suicidal thoughts, in his report Dr Wong described the history given to him by the applicant:[47]

“ By mid November 2012, the depressed mood became even more prominent. He became preoccupied with feelings of hopelessness and worthlessness all the time. He developed suicidal thoughts could not control his mind and he kept thinking about jumping off tall buildings. He gave his video games to his friends as a final act, while he was premeditated about suicide. On 12th of November 2012, after a birthday dinner with his father and siblings he went home early and his urge to jump off height was particularly strong. He was saved from committing suicide when his family went home early and intervened.”

53.  The judge described the applicant’s testimony to similar effect:[48]

“ He described himself as being very unhappy and angry. He told you that he had intended around then to commit suicide, but that he held off until after his father’s birthday. After the birthday meal, the deceased, who obviously had not attended it, telephoned his family and told him (?) about his suicidal thoughts. You have heard confirmation of this from the accused’s father in his testimony. It is a matter for you whether you think this consistent with his claim of her being heartless towards him on the day of her death. Stating the obvious, he was talked out of suicide by his family who suggested that he terminate his relationship with the deceased and change his employment to avoid her.”

54.  Of the applicant’s father’s confirmatory evidence of the applicant’s suicidal thoughts, the judge reminded the jury “that he had recalled the dinner on 14 November and related to you the fact that the family and he had rallied around the accused when they became aware of his distress and gave him the advice previously mentioned.”[49]

55.  In fact, Mr Pun Kam Chuen, the applicant’s father, testified that having returned home as soon as he could, on receiving a telephone call from his wife, the applicant responded to his question as to why he was crying:[50]

“ It’s very hard for me, I don’t want to live any more, I want to die.”

He said that the applicant went on to say the girl had several boyfriends at the same time, and also said that the girl was playing him.

56.  We are satisfied that Dr Wong’s testimony, in particular that the applicant’s morbid jealousy had led to the development of suicidal inclinations in the applicant, together with the other evidence as to those suicidal inclinations, in the context of the applicant’s testimony of the deceased’s taunts was relevant to the consideration of the jury of the issues of whether or not the applicant had lost self-control and of the gravity of the provocation to the applicant.  With respect, the judge fell into error in failing to give the jury directions to that effect.

57.  Furthermore, although the judge directed the jury in some detail, reflected in the written directions, as to the evidence of the applicant relevant to the issue of whether he lost self-control, namely the “ongoing provocation” and as to the deceased’s heartless behaviour on the day of the killing, in particular that if he was to commit suicide he should do so elsewhere, he gave no similar direction in respect of the issue of the gravity of the provocation to the applicant.  As noted earlier, it is true that the judge touched on it briefly in revisiting three issues, including provocation, but he did so without bringing the issue of provocation and the relevant evidence into any focus.[51]  Significantly, that short direction was not part of the written directions given to the jury in respect of provocation.

58.  What was required to assist the jury on this issue was a direction to the jury that the consideration of the gravity of the provocation by the deceased, in the face of his threat of suicide on the day of the killing, was to be approached by having regard to the evidence of his earlier threatened suicide in mid-November 2012.  As the judge had pointed out, on the applicant’s evidence,[52] on the earlier occasion the deceased had contacted the applicant’s family by telephone to warn them of his suicidal inclinations.[53]  So, one consideration of the gravity of what was said by the deceased on the day of the killing was whether it was a directed taunt or insult, albeit even if that was not the case the applicant might have been misled into believing that the remarks were directed.[54]

59.  We are satisfied that the judge’s errors were material.

Inferences

60.  It was the applicant’s evidence that on the day of the killing he had emerged from the bedroom where he had been with the deceased and picked up the knife, with which the various injuries to the deceased were inflicted subsequently, from the living room.  By contrast, the deceased’s sister, Ms  Law, had testified that her family had never purchased a white handled fruit knife.  Of her evidence the judge said:[55]

“ She told you that she had been in the deceased’s home three or four days before the killing and she had seen no white-handled knife at that stage. She had spent two nights in the deceased’s home on that occasion. When she was shown the knife with which the deceased had been killed - that is Exhibit P9 - she said that she had never seen that knife in the flat.”

61.  The judge went on to remind the jury that Ms Law had identified a fruit knife in a bowl in the living room depicted in a photograph of the living room taken by a police photographer.

62.  Of the significance of the evidence on the issue of the provenance of the knife, the judge said:[56]

“ You may think, members of the jury, that this is an important aspect of the evidence to which you will want to give careful consideration. You may find that the accused was, or may have been, telling you the truth when he said that he had found the knife already in the flat, and you may accept his evidence. However, if you reject the accused’s version and accept this witness’s evidence that the fruit knife had not been present in the deceased’s home prior to 28 November, then it would be open to you to infer, as I have pointed out to you earlier, if you were so inclined, that the accused had carried the knife with him into the flat which, in turn, may assist you in regard to the issue of the accused’s intention.”

63.  Earlier, having directed the jury that they must not draw an inference adverse to the applicant unless it was the only reasonable inference to be drawn, the judge had addressed the same evidential issue by way of an example:[57]

“ Let me give you an example. You may find that the accused was or may have been telling you the truth when he said he found the fruit knife already in the flat. If so, then no question of inferences arises. However, if you reject the accused’s version and accept the testimony of the deceased’s sister that the fruit knife had not been present in the flat prior to 28 November, then the prosecution would say that the only reasonable inference to draw from that fact is that the accused had carried the knife with him into the flat and that, in turn, may assist you in regard to determining the accused’s intention.”

64.  It is to be noted that Ms Law had testified that she had last been on the premises prior to the killing on the nights of 23 and 24 November 2012.  It follows that there was a full four day period about which she could not and did not speak as to what happened in the premises.  So, the judge fell into error in telling the jury that it was her evidence that “the fruit knife had not been present in the flat prior to 28 November”.  Not having been in the flat in the several days prior to 28 November 2012, she had not been in a position to give such evidence, nor had she so testified.

65.  We are satisfied that the judge’s direction to the jury that “it would be open to you to infer, as I have pointed out to you earlier, if you are so inclined, that the accused had carried the knife with him into the flat which, in turn, may assist you regard to the issue of the accused’s intention”, was a misdirection.  There was an obvious lacuna in the evidence which made the drawing of such an inference speculative and therefore impermissible.  Given that it went to the core issue of intention in the offence of murder it was a material error.

66.  Although Mr Tam invited the Court to apply the proviso, if we found in favour of the applicant in respect of Ground 1, he did not do so with any vigour.  That was understandable.  We are satisfied that having regard to the fundamental defects in the summing up in respect of provocation, without having regard to the merits of the second ground of appeal, that there was no question of applying the proviso.

Conclusion

67.  Accordingly, we allowed the appeal on both grounds and, given that Mr Boyton realistically did not oppose a re-trial, we ordered a re-trial of the applicant on the count of murder on a fresh indictment.  In addition, we ordered that the re-trial be expedited.

Post-script

68.  In light of the series of material errors that we have found to have occurred in the judge’s directions to the jury in respect of the issue of provocation, notwithstanding that he had the assistance of two very experienced counsel, we suggest that it might be of assistance to both judge and counsel in the future where issues of provocation arise, for regard to be had by them to the analysis of the issues that arise at the various stages and the admissible evidence relevant to the issues, together with his summary of the constituents of provocation, set out in the judgment of Lord Hobhouse in Smith (Morgan) and cited at paragraphs 43 and 44 of this judgment.

[1] Appeal Bundle, page XIV - Admitted Facts, paragraph 20.

[2] Appeal Bundle, page 2 G.

[3] Appeal Bundle, page 2 H-I.

[4] Appeal Bundle, pages 34 R - 35 A.

[5] Appeal Bundle, page 37 G-J.

[6] Appeal Bundle, page 226 L.

[7] Appeal Bundle, page 226 Q.

[8] Appeal Bundle, page 227 J-K.

[9] Appeal Bundle, page 229 Q-R.

[10] Appeal Bundle, page 10 N - 11 O.

[11] Appeal Bundle, pages12 E-J and 45 D-J.

[12] Appeal Bundle, pages 14 T - 16 R

[13] Appeal Bundle, pages 16 T - 18 K.

[14] Appeal Bundle, pages 50 O - 51 C.

[15] Appeal Bundle page 60 A-H.

[16] Appeal Bundle, page 21 T - 22 C.

[17] Appeal Bundle, pages 92 - 93 D: Dr Wong Ye Him-“morbid jealousy is well known to be one of the symptoms that would provoke violence”.

[18] Appeal Bundle, pages118 C-E; 121 P-Q.

[19] HKSAR v Lo Chun Siu (CACC 90/2013; unreported, 6 June 2014).

[20] HKSAR v Lo Chun Siu, paragraph 186.

[21] Appeal Bundle, page 15 E-H.

[22] Appeal Bundle, page 15 J-M.

[23] Appeal Bundle, page 15 N-T.

[24] Appeal Bundle, pages 15 T - 16 B.

[25] Appeal Bundle, page 16 B-S.

[26] Appeal Bundle, page 46 T-U.

[27] Appeal Bundle, pages 37 A-U; 40 K-T; 43 L-S.

[28] Appeal Bundle, pages 47 R - 48 C.

[29] Appeal Bundle, page 68 A-D.

[30] Appeal Bundle, page 60 D-I.

[31] Appeal Bundle, page 65 G-K.

[32] Attorney-General for Jersey v Holley [2005] 2 AC 580; pages 588 H - 589A, paragraph 5.

[33] Attorney-General for Jersey v Holley, paragraph 6.

[34] Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354.

[35] Ho Hoi Shing v HKSAR: pages 367 H - 368 B, paragraph 32.

[36] R v Smith (Morgan) [2001] 1 AC 146 at pages 185 G - 186 D.

[37] R v Smith (Morgan), page 205 C-H.

[38] Luc Thiet Thuan v The Queen [1997] AC 510 at 144 H and 148 E-F.

[39] Appeal Bundle, page 266 B-C,

[40] Appeal Bundle, page 266 J-K.

[41] Appeal Bundle, page 266 P.

[42] Appeal Bundle, page 272 O-P.

[43] Appeal Bundle, pages 272 U - 273 A.

[44] Appeal Bundle, page 52 I-O.

[45] Appeal Bundle, page 155.

[46] Appeal Bundle, page 92D-H.

[47] Appeal Bundle; page 144, paragraph 22.

[48] Appeal Bundle, pages 35 Q - 36 C.

[49] Appeal Bundle, page 46 P-R.

[50] Appeal Bundle, page 305 F-H.

[51] Appeal Bundle, pages 47 Q - 48 C.

[52] Appeal Bundle, page 262 D-P.

[53] Appeal Bundle, pages 35 S - 36 B.

[54] Luc Thiet Thuan v The Queen; page 148H, Lord Goff.

[55] Appeal Bundle, page 20 R-U.

[56] Appeal Bundle, pages 21 Q - 22 C.

[57] Appeal Bundle, page 8 G-M.