HKSAR v. LAM CHOR YUK

CAC C 229/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 229 OF 2009

(ON APPEAL FROM HCCC NO. 14 OF 2009)

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.  On 26 June 2009 the applicant was found guilty of the offence of murder after trial before Mr Justice McMahon and a jury.  He now seeks leave to appeal against conviction.

2.  The facts are largely common ground.  The issues in the case were the applicant’s intent and whether a reasonable person of his age and sex would or might have acted as he did in the circumstances which presented themselves.

3.  The applicant was aged 27 years at the time of the killing and the deceased, Ms Lau, was then aged 19 years.  They commenced courting in April 2007 and shortly thereafter she moved to live with him in the premises occupied also by his mother and his younger brother.

4.  In August 2008, it came to the applicant’s attention that the deceased had been communicating on her mobile telephone with a male on the Mainland called Ah Leung.  It was accepted that the applicant and the deceased argued loudly during the early afternoon of 21 August 2008 and that that was because the deceased had been talking to Ah Leung on a mobile telephone and had apparently made an arrangement to meet him on the Mainland.  Thereafter, in his bedroom, the applicant took the deceased by her neck and squeezed it until he realised that she was dead.

5.  He then went to speak to his brother who was in a nearby room and told him to study hard and look after their mother.  The applicant went back to his room and stabbed himself in the neck with a pair of scissors with sufficient force to crack one of the bones in the neck.  The brother found him severely injured and the girl apparently dead.  The police and ambulance were called.  The applicant was taken to hospital.

6.  On the morning, and then again on the afternoon, of 22 August 2008, the applicant was interviewed at the hospital by DPC 49263.  The applicant’s case was that the police officer did not note down everything that he said, in particular that he had not intended to kill or harm the girl.  Be that as it may, the applicant did not dispute that what was taken down was what he actually said, albeit only in part.  What was recorded by the police officer was that the applicant and the deceased started to quarrel three or four days previously, after the applicant had ascertained that she often talked with Ah Leung on the telephone.  

7.  On the day of the killing, the deceased told the applicant that she planned that day to go to the Mainland to see her grandmother, but it was apparent from a telephone call made in the early afternoon that Ah Leung had offered to fetch her in Shenzhen.  The applicant did not want her to go.  There was a quarrel.  He said:

“We were sitting on the edge of the bed facing the wardrobe at that time. I knew that she would go to see Ah Leung so I grabbed her round the neck with my arms. She asked me to stop it. I then pulled her down onto the bed. We lay on our sides and her back was against me. I then grabbed the back of her neck with both hands. She still struggled and wanted to rise and asked me to stop it. She once struggled and had her face rested on the pillow. My hands were on her neck all along. She then struggled and lay on her side facing the wardrobe. I gripped the front and back of the left of her neck with both hands. I can’t recall whether I was sitting or standing at that time. A while later I found that she did not have any response and that her body was cold. I then had my hands off the neck and rose up.”

8.  The evidence of a pathologist was that the deceased died as a result of pressure to the neck.  He discerned petechiae on the body, which indicated that pressure had been applied to her neck sometime before she died.

The defences

9.  The defendant pleaded guilty to manslaughter but not guilty to murder.  This plea was tendered on the basis that he had not intended to kill or cause serious harm to the deceased.

10.  The applicant gave evidence at trial and said that when Ah Leung telephoned Ms Lau that afternoon, he could hear the conversation between the two of them and he heard Ah Leung ask the deceased whether she wanted him to drive to Shenzhen and fetch her.  A quarrel ensued.  He wanted her to stay until after he had had a job interview that afternoon but she refused.  He wanted her to stay for the anniversary of their courting but she refused that as well.  Then, according to his testimony, the deceased said “How would you know if I saw Ah Leung if I did not tell you?”  He became very angry.  She went to the wardrobe and he concluded that she was going to fetch something to wear to the Mainland.  He put his arms round her neck from behind and asked her to wait until the first of the month, their anniversary, before she went but she said she had to go.  He pulled her down to a sitting position on the bed and she struggled and he was very angry and unhappy.  He thought that she was deceiving him, so he squeezed her neck with his hands.  He did not know for how long.  She cried out “Don’t do this” several times.  He felt as if he was in a trance.  He had no intention of doing anything in particular but he then looked at the deceased and she provided no response and he was dumbfounded when he realized that she was dead.  He had never thought of harming her and it had never occurred to him that he might be hurting her.  He still loved her and he wrote a note.  After he finished writing the note, he spoke to his brother and then went back to his room, and lay down next to the deceased and stabbed himself with scissors.

11.  This account gave rise to the alternative defence of provocation.  The prosecution was prepared to proceed on the basis that the deceased had had telephone conversations with Ah Leung and had provoked the applicant to lose his self-control.  So the question on this issue was whether the prosecution had proved that a reasonable person would not, as a result of the deceased’s behaviour, have done as the applicant did.  That was the basis upon which the matter was left to the jury, the judge telling the jury that in relation to that question, they were entitled to take into account her conduct in the days preceding and including the events of 21 August 2008.

Counsel’s criticism of the judge

12.  The grounds of appeal, save in respect of one ground which asserts that the judge was wrong to admit statements made to the police by the applicant, consist of a host of attacks on the conduct of the trial judge, culminating in the assertion that:

“The defendant did not receive a fair trial because his defence counsel was subjected to repeated hostile and largely unwarranted judicial interruption.”

13.  This attack, or its essence, was made in two stages: first, in the perfected grounds of appeal and the skeleton argument dated February and August 2010 respectively and, secondly, in oral submissions to this Court.  It is correct to say that in the oral submissions, Mr Haynes seemed inclined to modify the vehemence of his criticism by conceding that some of the grievances originally advanced in writing were perhaps petty and that some of the comments he made in the course of the hearing below were expressions of exasperation which he would regret making in a cooler situation. Nonetheless, he persisted in his assertions that he was unjustifiably and repeatedly interrupted and unfairly directed by the trial judge as to what he could or could not do, to the extent that he felt intimidated; and his address to this Court was peppered with suggestions that the atmosphere was not amicable and that this piece or that piece of conduct on the part of the judge came to him as “a bit of a shock”.

14.  To the extent that counsel suggested that the strident terms of the perfected grounds of appeal and written submissions were framed in the immediate aftermath of the trial, the fact is that those grounds and those submissions were filed months after the verdict and were the documents before this Court up to and including the day upon which this application was heard, and the gravamen of the criticisms was retained in the oral submissions.

15.  The suggestion was made that “events occurred during the course of the trial which were neither normal nor fair, and were uniformly prejudicial to the defence”.  It was in particular asserted, in the grounds and in the written arguments, that the judge “put unjustifiably critical questions to defence counsel”; issued unjustifiable caveats to defence counsel; failed to offer any regret or apology for a mistake of law (a complaint now withdrawn); “unjustifiably imposed numerous restrictions in advance on specific areas of the defence case and directed how the defence should not deal with such areas in the defence speech to the jury"; wrongly restricted defence counsel’s reference to certain evidence; so conducted himself by his “unwarranted” interventions as singularly to disable counsel in the conduct of the case, particularly during his final address; eroded “what little standing defence counsel had with the jury” to an extent that was “irreparable”; applied pressure by unjustified admonitions which “appear to have been based on the misapprehension that the defence had run the risk of putting their client's character in”; in this regard “never fully acknowledged his mistake” and “continued to browbeat the defence by constant references to the alleged bad character of the defendant.”  By reason of his conduct, it is said, “defence counsel’s confidence was unfairly handicapped and never recovered”; and the cumulative effect of the judge’s conduct was “to unjustifiably undermine the defence case, to undermine defence counsel’s confidence in front of the jury and to handicap the ability of defence counsel to properly represent his client’s case to that jury.”

16.  We have scrutinised the transcript of interchanges between the trial judge and Mr Haynes and the summing-up and we find that Mr Haynes assertions are without foundation.  There was an interruption to counsel’s closing speech which requires careful attention and which must specifically be addressed but this does not detract from our conclusion that the judge conducted himself and the trial with scrupulous fairness and skill.  He showed remarkable patience in the face of what, we regret to say, was an unnecessarily combative approach by defence counsel.  The summing-up was fair and balanced, and contained a careful and accurate rehearsal of the contending cases in respect of each factual issue.  Whilst in the course of oral submissions to this Court, Mr Haynes modified some of his attack and acknowledged that some of the expressions in the grounds and written arguments went too far, the attacks in those documents ought not to have seen the light of day.

17.  We do not accept the suggestion that Mr Haynes was intimidated by what transpired between him and the judge. As the transcript shows, and as we know, Mr Haynes is not one to be intimidated.  That is, of itself, an admirable quality.  Indeed counsel has a positive duty resolutely to stand up for and advance the interests of his client but that does not require discourtesy.  Whilst counsel has a duty firmly to battle for the interests of his client, a judge has a duty too, a duty which is not in the least inconsistent with fairness to a defendant.  It is a duty to manage a trial and to do so firmly and, as has frequently been said, not to sit idly by when bad points are taken or when for some other reason it appears that counsel’s conduct gives rise to the danger that justice may miscarry.  In this case, the judge’s interventions were timely and appropriate, with the rules of evidence to the forefront of his mind. 

The trial below

18.  Now, since the attack has been made and since we need to examine the full background against which the interruption to counsel’s speech occurred, we move to an examination of what happened during the trial. 

19.  Because of the way the appeal bundle has been presented, this has not been an easy exercise for this Court.  Chunks of the transcript – and we were faced with hundreds of pages of transcript – have been presented but not in chronological sequence and we have been left largely to our own devices, jumping backwards and forwards in the transcript, to ascertain what happened and when.  Towards the end of the hearing we were forced to require counsel to provide us with a written chronology so that we could better follow the sequence of the proceedings. 

20.  This is not the way for an appeal to be presented and we are bound to say, with regret, that the lack of adequate discipline in the presentation of appeals, including appeal bundles, is too often a hallmark of the presentation of criminal appeals as opposed to other categories of appeal.  A court is entitled to expect its analysis of a case to be facilitated by efficient and clear presentation.  It is counsel’s duty to do so; not the court’s to make do with what is thrown at it.  This is a complaint which we have made from time to time but is one which, unfortunately, has with some regularity tended to fall upon deaf ears.  We can but repeat our request that the profession address the issue.

The Selvey issue

21.  The first matter to be noted, which was central to the judge’s repeatedly expressed concern, is the fact that the applicant had a criminal record involving violence.  In the year 2000, he pleaded guilty to an offence of robbery, an offence of attempted robbery and to a number of offences of theft and was sentenced to a total of four years and four months imprisonment.  The robbery was a gang robbery in which weapons were used.

22.  It follows that any defence attack on the character of a witness or any foray on behalf of the applicant to paint the applicant’s character in a favourable light, particularly in a light which might be taken by the jury to suggest a person of non-violent disposition, ran the real risk of an application by the prosecution to adduce evidence of the applicant’s previous convictions.  As we shall see, that is what concerned the judge.  He was concerned on two counts: first, to give counsel for the applicant timely warning of the risk he was running when he, the judge, perceived that risk to arise; and, second, to ensure that the jury was not misled.

23.  When the deceased’s mother testified, Mr Haynes was concerned to, and did, adduce from her evidence designed to show the deceased in an unfavourable light.  So too in the case of the applicant’s mother, when she gave evidence, he tried to show that the deceased had not told her the truth about the nature of her employment.  There followed an exchange between counsel and the judge as to whether an attack on the character of the deceased victim opened a defendant’s character to exposure; the judge was of the view that Mr Haynes was on thin ice in this regard but left the matter open to further research.

24.  Then the applicant’s brother was called.  Before cross-examination of the brother, Mr Haynes quite properly informed the judge that he was “grateful for any early warning system that arises because it may save time and it will safeguard my client.”  He, counsel, understood the effect of Selvey v DPP [1970] A.C. 304 position differently from the judges “intuition” on the point and “we will try and sort that out”, to which the judge courteously retorted that his, the judge’s, intuition had been wrong once before (a reference to a point in a different trial), as Mr Haynes had reminded him, but “this might make it one-all, Mr Haynes”, a perfectly harmless and light aside, which Mr Haynes saw fit in his written arguments to criticise on the basis that “the issue is too serious to be referred to as some sort of ‘test series’ between counsel and the Bench.”

The applicant and the reasonable man

25.  Mr Haynes then notified the judge that he intended to ask the applicant’s younger brother questions about the applicant’s personality.  The suggested purpose of this was to show the applicant to be a reasonable man which, in turn, would assist the jury in deciding whether a reasonable man would, in the circumstances which had faced the applicant, have done what the applicant did.  This, said Mr Haynes, was a technique which he had developed “to meet this reasonable man problem and to demonstrate to the jury that a reasonable man might well do such a thing to show to the jury that the defendant, up until this episode, in the ordinary sense of the word, whatever it means, is a reasonable man, or has been in his life so far.”

26.  It takes little imagination to discern at once the problem which the judge foresaw, namely, that in the light of the applicant’s conviction for robbery with weapons, this would mislead the jury, that such questioning would open the applicant to the risk of disclosure of that conviction and that, in any event, this was not the way in which to test how the reasonable man might act in the circumstances.

27.  We do not propose to set out in detail the exchange between the judge and Mr Haynes on the subject.  Suffice it to say that the exchange was prolonged, in the course of which Mr Haynes made clear that his objective was to show that his client was “an ordinary person so that the jury don’t think he’s a mad hat”, whereupon the judge pointed out that the applicant, in the light of his criminal convictions, was not really an ordinary person at all and the judge was “really concerned that it will put in the mind of the jury, unless it is very carefully dealt with, that this man is of good character and that he is plainly not.”  Mr Haynes, not to be put off by the judge’s concern and explanation of the problem with the proposed course, pressed on at length and we see, for example, the following exchange, this time in the jury’s absence:

“ MR HAYNES: Well, because, as I say, if it be the truth that he is, in ordinary circumstances, a level-headed person, that will remove the possibility that might otherwise be in the jury’s eyes that he is some sort of a hot head, a kind of boy that used to sometimes erupt in the playground.

COURT: Or go off and do a serious robbery. See that’s the difficulty, isn’t it?

MR HAYNES: Well, I think he’s done his time for that.

….

COURT: … I don’t see the relevance of what you’re trying to do in any real sense in terms of the elements of the defence of provocation, and … I see great dangers that very unfairly you will have --you will raise in the minds of the jury the fact that the defendant is a person who is something approaching good character when he plainly is not.

MR HAYNES: Well, I think -- I’m very concerned about this. I feel as though -- look he has a conviction for which he’s served and done his time, that’s it.

  COURT:    Yes.”

28.  We are bound to say that this was a singularly odd proposition to be advanced, namely, that because a person has served his sentence for a particular crime he does not, if he attacks the character of a prosecution witness and seeks to suggest that he, the defendant, is a person of good character, open himself up to revelation of that conviction. 

29.  Towards the end of the exchange on this issue Mr Haynes said:

“ MR HAYNES: I don’t want to be intimidated into putting up a feeble defence because of his conviction some years ago is constantly being referred to.

COURT: Well, you’ve got to recognise the fact that it exists.

MR HAYNES: I can’t forget that in this court, no.

COURT: Well, you must appreciate that is a problem for you perhaps in how you conduct this case. It cannot be ignored, Mr Haynes. It would be very dangerous for that to be ignored because, whether or not that comes into evidence, your client’s previous conviction is governed by a principle and that is something you must be aware of.

MR HAYNES: Yes, I thought it was governed by a statute actually.

COURT:      Yes, well, Mr Haynes, I think you really want to take it quite seriously that he has this previous conviction and consider that when you question the witnesses.”

30.  The suggestion of intimidation was unwarranted and the comment “I can’t forget that in this court” an offensive retort to the judge’s courtesy and palpable fairness.

31.  When the court resumed the next day, the result of research on the Selvey point was that the position in Hong Kong was different from that in England as the English provision enabling an application to cross-examine the accused as to character where an attack had been made on the character of the deceased was the result of specific legislation in 2003, legislation not enacted in Hong Kong.

32.  The judge acknowledged that he had had in mind the English position and offered Mr Haynes the opportunity of recalling witnesses.  Mr Haynes was not content to leave it at that and said that he was “perhaps a little hurt by” the implied rebuke that he had not researched the point.

Police issues

33.  Evidence then moved to that of police officers who had gone to the hospital on the evening of 21 August 2008, told that the applicant was not fit to be interviewed, secured a blood sample from him and returned the next day, 22 August 2008, when one interview was conducted in the morning and another in the afternoon, the contents of which were reduced to the notebook of a police officer.  Cross-examination of the interviewing officer DPC 49263 was extensive, directed first at comments allegedly made by the applicant but omitted from the records; secondly, at suggested breaches of the Secretary for Security’s Rules and Directions for taking statements from suspects; and also as to whether or not medical approval had been given for the taking of a blood sample, this despite the fact that the blood sample had itself been taken by a doctor.  Counsel wanted the jury to have a copy of the Rules but the judge saw no point in this.

34.  The testimony of the officer was interrupted by the judge raising again the Selvey question.  He had himself researched the point and expressly acknowledged that it was open to Mr Haynes to attack the character of the deceased without “losing your shield.”

35.  There was then some discussion about the estimated remaining length of the trial and Mr Haynes said:

“We’re making good progress, and my Lord, I’m still more nervous than usual because I don’t want to go and put my foot on thin ice that I don’t realise is ice at all. And that’s not a criticism, I’m glad to be warned, but it nevertheless makes me a bit nervous”: to which the judge replied: “I’m here to assist.”  (Emphasis added).

36.  In any event, Mr Haynes informed the court that he had “abandoned my project for calling some evidence about [the applicant’s] disposition.”

37.  Other police evidence was adduced as was the evidence of a pathologist.

38.  Next, there was a revival of the suggestion that the jury be provided with a copy of the Rules and Directions for the Questioning of Suspects.  Mr Haynes made extensive submissions about this but the judge was against him saying that, as in the case of providing a jury with copies of legislation, there was a danger of a jury arriving at its own interpretation.  The judge asked that, instead, counsel should precisely identify the relevant breaches relied upon and the judge would tell the jury in his own words what the relevant rules and directions were, so as to facilitate the jury’s understanding of the rules and the relevant issues.

39.  The judge then provided counsel with his proposed written directions on various aspects of the law and asked counsel to consider them.  Witness statements were then read and the prosecution closed its case.

40.  On the afternoon of 23 June 2009, the applicant commenced testimony and continued the following morning.

41.  Once the applicant had finished testifying, Mr Haynes made an application for the recall of two police officers who had been prosecution witnesses, namely DPC 49263 and D Sgt 10025.  The object was to put to them an entry in a Police Investigation Report.  The typed report spanned the period from 4:30 pm on 21 August 2008 to 3:45 pm on 1 September 2008.  The Report had been in the hands of those acting for the applicant in the trial for some considerable time but Mr Haynes had had his attention drawn to an item which he had not previously noticed and which he thought was of significance in undermining the credibility of the police officers and he asked that he should be allowed to cross-examine them about it.

42.  The entry bore the time 2300 and the date 21 August 2008 and it ran as follows:

“Rang up ‘Ah Leung’ [Tel number here stated] which was mentioned in the caution statement of the arrested person. The opposite party admitted that he only knew the deceased for about two or three weeks, as an ordinary friend. At the same time, (he) admitted that at about 1 PM today, he rang up the deceased for asking the deceased when (she) would reach Guangzhou. Besides, he indicated that he did not have a two-way permit and had not intention to come to Hong Kong.”

Leung, it will be remembered, was the Mainland man with whom the deceased had been having telephone conversations.

43.  The point that Mr Haynes wished to make was that this entry demonstrated that by 11 pm on 21 August 2008, the police had already interviewed the applicant and that their testimony that they only first interviewed him on 22 August must have been untrue. It had never been suggested by the applicant in his testimony, or indeed in any of the cross-examination of prosecution witnesses during the course of the prosecution case, that there had been a prior interview but Mr Haynes postulated that in view of this investigation report entry, there must have been some questioning which his client, in his drowsy post-operative state, must have forgotten.  Despite considerable misgivings about the lateness of the application and the failure to take the point before, the judge allowed the witnesses to be recalled and cross-examined.

44.  The sergeant was the first of the two officers to be recalled and the suggestion put to the sergeant by Mr Haynes — presumably based on an inference he drew from the contents of the investigation report itself rather than upon any express instructions from his client — was that: “When you approached his bed and got him to sign a consent form for taking blood, you talked to him a little bit about the case.”  The cross-examination went on to suggest that the signature on the blood consent form was a little different from the applicant’s normal signature.  There then followed, in the jury’s presence, the following unfortunate exchange:

“ COURT: Well, what’s the blood request got to do with the reason the witness was recalled?

MR HAYNES: Well, the reason the witness is recalled is because I’m suggesting that there was some talk about the case on the evening of the 21st.

COURT: That’s what you’re suggesting.

MR HAYNES: Well, that’s the only way this entry could have been made onto…

COURT: What has the blood request got to do with that?

MR HAYNES: Well, because that was the occasion when this conversation took place.

COURT: Then what’s the signature got to do with that?

MR HAYNES: Well, he may or may not agree, but it tends to show that the person signing might have been a little bit confused.

COURT: The signature?

MR HAYNES: Yes. Well, all right, if you don’t like it, you don’t like it.

COURT: Just a second.

MR HAYNES: I just wanted to know whether the witness would agree, that’s all.

COURT: Mr Haynes, I see absolutely no relevance. You can have another chance of convincing me that there is relevance. I see absolutely no relevance between the signature on the blood request form and the reason this witness was recalled.

MR HAYNES: Well, then the witness need not look at it, but he needs to answer this…

COURT: You can try and convince me of that if you wish.

MR HAYNES: No, the more I say, the less it seems to help me. I’m going to say, I’ll ask him about this.

COURT: Members of the jury, I’m sorry to do this to you, but I’d ask you to just go outside for five minutes and the witness can go outside for five minutes.

JURY LEAVES COURT.” (Emphasis added)

45.  The comment to the judge “.. if you don’t like it, you don’t like it,” was of course unnecessary and, one would have thought, likely to be counter-productive in its impact on the jury.

46.  Small wonder, then, that the judge asked the jury to retire and then said:

“Mr. Haynes, I think the last time I lost my patience with counsel was many, many, many years ago, but I have seldom come across a less-how can I put it-a less relevant, meandering cross-examination of a witness than this. And I might add this too, Mr. Haynes. You will conduct yourself with politeness and the proper deportment in this court. Your approach to this case is none of my business, really, except it seems to me that you have spent - and I'm putting this mildly - excessive time on irrelevancies. Now, if this all comes down to nothing, I really am tempted to take the matter further. It seems to me that this verges on the wasted costs order.”

47.  Counsel insisted that there was “an equal chance that the document will give the lie to the testimony of these witnesses,” and that the relevance of the blood consent form was that it was “used as a subterfuge [by the police] to approach the witness”; and the judge said he was not going to stop him because counsel had assured him that he had instructions about the matter.

48.  The effect of the testimony of the police officer who compiled the investigation report was that the report was not written contemporaneously with the events to which it related but some days later, so that the entry in question, in its reference to the cautioned statement of the arrested person, was an ex post facto method of identifying Ah Leung.  The police had indeed telephoned Ah Leung at 11 pm on 21 August, not as a result of any information provided at that stage by the applicant but because Ah Leung’s telephone number was taken from the deceased’s mobile telephone of which by that stage the police had possession. 

49.  With this evidence, the testimony in the case as a whole concluded.

The victim’s credibility

50.  There then followed a discussion between the judge and counsel as to various matters that required clarification before speeches and the summing-up.  This discussion, again in the absence of the jury, revolved around an insistence on the part of Mr Haynes that he was entitled to tell the jury that the law regarded a person with criminal convictions (the deceased) as less credible than someone without.  The suggested purpose of this line of address was, it seems, to assist in the defence of provocation.  The judge was concerned about this because the law as to credibility was directed at the credibility of a witness which, of course, the deceased was not and, in any event, the point was not so much whether the deceased had in fact lied to the applicant about Ah Leung but rather whether there were grounds for the applicant to believe that she had lied. 

51.  At the end of a lengthy discussion, the judge told Mr Haynes that it was perfectly open to him to refer to the deceased’s character, her criminal convictions, that she was obstinate, stubborn and therefore somewhat more easily understood by the applicant to be deceiving him but what, according to the judge, counsel was not permitted to do was to “try and boost that up in the minds of the jury by saying there is a principle of law which suggests that a person of bad character is less credible than another person in so far as this case is concerned.  I just don’t see its application and it would only be something that would confuse the jury because the real issue is what the defendant believed and considered.”  “My Lord,” asked Mr Haynes in reply : “Are there any other restrictions your Lordship wishes to place on my speech?”

Speeches

52.  On the morning of 25 June 2009, prosecuting counsel delivered his closing address for a period of about 15 minutes and then Mr Haynes addressed the jury.

53.  The address by counsel for the applicant was detailed, of which fact no criticism is made.  He drew the attention of the jury to the fact that this was the only defence speech available to him, a bit unfair, he said; he referred to the fact that the interview of the applicant had not been videoed and said that that was an unsatisfactory feature of events, and he went through the suggested shortcomings of police procedures in this case and attacked their credibility in relation to the recording of the interviews.  Included in his speech was the following:

‘Both of us [counsel] will rely on the learned judge’s summarising parts of [the evidence] which are thought to be helpful, because, you see, it must be obvious to you that my learned friend is the advocate for prosecution and I’m the advocate for the defence, and we both have a point of view to push on to you. It is always hoped, and an expectation that is almost always realised, that the judge in the trial, when he sums up to you, will not decorate his summing-up with comments which are in favour or against the accused. Indeed, in the old days, many jurors and counsel couldn't really tell what the judge thought as to guilt or innocence because of the skilful and impartial way in which matters were summed up and the skilful way in which hostile comments to the accused were avoided. So the defence don’t really have the last word.’

54.  Counsel went on to draw to the attention of the jury a number of factors which he contended showed that the applicant had not intended to kill or cause serious harm to the deceased and he returned then to the topic of the credibility or reliability of the police evidence.  He emphasised the importance of juries.  He referred to the fact that the girl was a drug user and that traces of ketamine powder had been found in her nostrils, and to her questionable character and background; all in support of the contention that the applicant believed her to be lying to him.  He went back then to the credibility of the police and the point about the investigation report entry. 

55.  He turned next to the question of provocation in connection with which we find the following, all in the presence of the jury:

“ MR HAYNES: Now, because my learned friend talked about the law not being blind or inhumane, and he said that that is part of the reason why the provocation alternative was available where in fact in certain circumstances somebody had murdered anyone, he was correct in saying that, and he has given you some pretty good insights into how provocation works, and you will get directions from the learned judge.

But I think while we're talking about the law not being blind or inhumane, I think it's counsel's duty to point out that over the last decade or so there has been huge legal controversy over how the law of provocation operates. The learned judge will make it clear to you, because we take it as it is now, and the fact is that in England, the whole thing is -- an attempt is being made to reconstruct it.

COURT: I think you might leave the law to me, Mr Haynes, in that regard.

MR HAYNES: Yes, very well. But I will tell you this, because my learned friend has mentioned this point, and it is important when trying to understand a concept, as our professors used to tell us, to try and bear in mind the history of how it developed, and in fact it very much echoes what my learned friend says.

The defence of provocation was developed to allow for the frailties of human beings, because we're not all perfect. As Immanuel Kant observed, "The crooked timber of men cannot be made straight." In other words, none of us are a straight plank. We all have our idiosyncrasies. Provocation as a defence was first recognised towards the end of the 17th century and the beginning of the 18th century, and it has continued to evolve to this day.

The concession of the law to allow for the defence of provocation in a homicide represents the more compassionate aspect of the Common Law, since in those days, killing was murder and was visited by execution. So you can see that even in those old days when perhaps people were -- life was a bit cheaper - 17th and 18th century - people began to think, well, the charge of murder is so wide. Supposing a man, very unwisely, seeing his 92-year-old father suffering from a terminal illness, and his father begs him to end his life, and eventually the weak son succumbs and helps his father to die. That son is guilty of murder.

On the other hand, I’ve given you the example of the nasty husband who poisons his wife for the insurance; much more wicked. So we can see that the development of the provocation was a way of softening the result. And then it goes on, because my learned friend has told you about the reasonable man. The concept of a reasonable man …

COURT: No, I think you will leave the law to me, Mr Haynes.

MR HAYNES: Sorry, my Lord?

COURT: You will leave the law to me.

MR HAYNES: My Lord, I'm going to make some ...

COURT: The jury will decide this case on the law as it is today.

MR HAYNES: My Lord, I'm going to make some comment ...

COURT: Not as it was.

MR HAYNES: My Lord, I want to make some comments. I've researched this quite carefully. There's nothing controversial about this. I want to tell the jury about ...

COURT: I don't see how the history of the law is of any assistance. The jury will decide this case on the law today, as I will direct them.

MR HAYNES: My Lord, you don't know what I'm going to say, though. I mean, it's part of my advocacy. If the jury don't like it, you'll tell them to disregard it.

COURT: This is history, Mr Haynes. This is history and philosophy. I don't see how it will assist the jury at all.

MR HAYNES: I beg your pardon?

COURT: This is history and philosophy, and I don't see how ...

MR HAYNES: Well, when I was trained ...

COURT: ... it assists ...

MR HAYNES: When I was trained ...

COURT: Please don't interrupt. I don't see how it assists the jury. How does the history of the law and the philosophy that you're dealing with assist the jury in this case?

MR HAYNES: My Lord, when I was training for the law, we were encouraged to know about history and philosophy and art in order to increase our grasp of the law.

COURT: But we are dealing with this case before the jury today, in the year 2009. What possible assistance is it to the jury to go back into last century?

MR HAYNES: Well, I found it of assistance to understand it, but if your Lordship is going to really prohibit me from presenting my arguments in the way in which I want to ...

COURT: Don't try and manufacture points. There is no relevance to this, so far as I can see.

MR HAYNES: Well, my Lord, your idea of relevance and my idea may be different.

COURT: Well, you'll have to accept mine. Unless you can suggest some good reason -- do you mind discussing this with the jury here, or do you want me to send the jury out?

MR HAYNES: No, I don't mind discussing it ...

COURT: Unless you can show me some good reason why you go back into last century or the century before and deal with the law of murder as it was then, I don't see the relevance of it.

MR HAYNES: All right. Members of the jury, the position is this. I'm entitled to say something to you about the reasonable man for the very simple reason that my learned friend spent a good deal of his speech talking about it without interruption.

COURT: You're not talking about the reasonable man, are you? You're talking about the history and philosophy ...

MR HAYNES: I'm talking about the ...

COURT: Please don't interrupt. You're talking about the history and the philosophy of the offence of murder. You can most certainly talk about the reasonable man, and you can most certainly deal with the elements of the offences and of the defence of provocation. But I don't see the history of the offence of murder and the philosophy of it is of any assistance to this jury.

MR HAYNES: Members of the jury, I was just about to tell you about the way in which the reasonable man came in, but I will not now tell you that, so we will try to understand it without any historical background.

But I will remark this. Students of law sometimes spend ages trying to understand this. You've got to try and understand it in a few hours, and you're expected to make important decisions on that brief acquaintance with the concept. I'll try and rethink what I hoped might help you, because it's my duty to try and get a fair trial for my client.

COURT: Do you want a short break, Mr Haynes?

MR HAYNES: No, no, my Lord. Members of the jury, you'll probably know, with your cumulative experience, that the idea of different humanity or humane backgrounds to a killing, as my learned friend has already said to you, is reflected by the possibility of not guilty to murder by reason of provocation but guilty of manslaughter as one of the verdicts you'll have to consider, I suggest, after you've considered the unlawful act manslaughter.” (Emphasis added).

56.  Mr Haynes resumed his speech, emphasised that the burden was on the prosecution to negative provocation and invited the jury to acquit the applicant.

57.  In the jury’s absence there was then a discussion between the judge and counsel concerning proposed written directions, a discussion which resumed the following morning, 26 June 2009.  In relation to a suggested passage – “if, for example, a person has an unusually jealous excitable by the nature he cannot rely on that as an excuse” – Mr Haynes invited the judge to include “a plain statement that there is no evidence in this case that this defendant had an unusually jealous, excitable of violent nature prior to this incident,” a request which the judge declined.

58.  The judge then delivered the summing-up, which we consider to have been measured, fair, thorough, accurate in law and balanced.

The applicant’s temperament

59.  In the course of discussion with counsel prior to the summing-up, after the judge had handed to counsel a copy of certain proposed directions, including a detailed direction on the issue of provocation, Mr Haynes addressed the judge about the following paragraph in those directions:

“The law expects people to exercise control over their emotions. If, for example, a person has an unusually jealous 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 jealous excitable or violent, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens would exercise in society as it is today.”

60.  Mr Haynes submitted to the judge that if this paragraph was to be there, “there should be a plain statement that there is no evidence in this case the defendant had an unusually jealous, excitable or violent nature prior to this incident… .”  The judge did not accede to this request.  That refusal on the judge’s part forms one of the grounds of this application.

61.  It is hardly surprising that the judge refused the application.  There was no evidence, one way or the other, as to the applicant’s temperament but to suggest, by whatever formula, that the applicant was a person of non-violent disposition was to ignore his conviction for a serious offence of violence.

The investigation report

62.  We have referred in paragraphs 41 to 48 above to the mileage which Mr Haynes sought to make at trial about the entry in the investigation report.  Mr Haynes now advances two appeal points in this connection.

63.  The first is in relation to what the judge said in his summing-up about the officer’s explanation of the investigation report.  The judge had rehearsed in some detail the inference which Mr Haynes sought to draw from this report and then turned to the officer’s explanation, namely, that the report was compiled after a number of days had passed and, secondly, that the telephone number of Ah Leung had been gleaned from the deceased’s mobile telephone.  The judge pointed out, correctly, that it had never been suggested at any time during the cross-examination of witnesses that there had been another cautioned statement: indeed, Mr Haynes tells this Court that there is still no such suggestion and that it is accepted that the only cautioned statement taken was that spanning the morning and afternoon of 22 August 2008.

64.  The judge then said:

‘But you might think that [the officer’s] explanation is an eminently sensible explanation of how those entries are there.”

65.  Mr Haynes complains about this: this was an unfair, prejudicial and inaccurate characterization, he says, for the explanation given by the officer was self-evidently not a sensible one.

66.  We were addressed at considerable length on the point but we are satisfied that Mr Haynes has sought to make something out of nothing.  The judge’s comment was a perfectly acceptable one and made in the context of a summary of competing analyses of the investigation report entries; including a summary of the applicant’s position as advanced by his counsel at trial.  The entire postulation advanced by Mr Haynes at trial was speculative at best and the fact of the matter is that, given that there was only, on any view, one cautioned statement, the explanation given by the police officer was inherently the most probable in the circumstances.  If it was accepted, as it was, that no cautioned statement was taken on 21 August, why—other than for the reason advanced by the police officer—did the entry for 21 August referred to a cautioned statement?

67.  Then Mr Haynes suggests that the interruption of his cross-examination, when he veered to the question of the blood consent form, disarmed and derailed his cross-examination. The police, he said in submissions to this Court, were on very slippery ground and they were being helped (by the judge) in a way that was not justifiable.

68.  We do not agree.  Mr Haynes characterised the investigation report point as his “silver bullet”.  It was in fact a weak point, which in any event was fairly covered by the judge in the summing-up and it is a gross exaggeration to suggest that the cross-examination was disarmed and derailed by the judge’s intervention.  The police were not on “very slippery ground”, for the explanation advanced was inherently acceptable.

69.  We add only this.  Mr Haynes’ submission that by the judge’s intervention, the police “were being helped by the judge” is a revealing submission.  It reflects the tenor of counsel’s approach in the court below and in the framing of his grounds of appeal.  The tenor, the theme, is one which suggests or implies that the trial judge was somehow intent on thwarting Mr. Haynes in his conduct of the defence case.  It is obvious that the judge was intent on no such objective.  The transcript reveals too much sensitivity on counsel’s part and an unwarranted readiness to conclude that the judge was an opponent.  Much flowed from this sensitivity and readiness; a sensitivity and readiness that has carried itself over into the presentation of the grounds of appeal.

Vagal inhibition

70.  The evidence of the pathologist, Dr Lam, was that it takes 10 to 15 seconds for a person to become unconscious by reason of pressure to the neck.  In the course of the autopsy, he discovered petechiae on the body of the deceased, which are small pinpoint blood spots that, according to his evidence, take at least 15 to 30 seconds to develop after the victim's blood supply has been cut off.  Furthermore, those spots do not form after a person’s heart has stopped beating and it therefore follows that the deceased’s heart was still alive 15 to 30 seconds after her blood supply to the brain had been cut off by pressure to her neck.

71.  In cross-examination of Dr Lam, Mr Haynes raised the phenomenon known as vagal inhibition and Dr Lam agreed that vagal inhibition can cause death quickly if receptors in the vagal nerve in the neck have pressure placed upon them.

72.  The defence objective in introducing the issue was to seek to show that the act of strangling the victim might, by reason of this possibility of striking the vagal nerve, have lasted for a shorter period than otherwise would have been the case, thereby assisting the applicant in his defence that he had not intended to kill or cause really serious bodily harm and, further, we are told by Mr Haynes, in the jury’s assessment of how a reasonable person might have reacted to the provocation offered.

73.  In the course of cross-examination of the pathologist, Mr Haynes, suggested to Dr Lam that “ … some military people are trained to be able to attack in that way [to cause vagal inhibition] and cause death more quickly”; a proposition with which Dr Lam agreed.  In his speech to the jury Mr Haynes said: “We all know that specially trained military people can kill somebody by pressuring the finger on a certain place.  The pathologist told us about that – in 15 to 20 seconds, even the heart can stop.”

74.  The judge asked a few questions of the pathologist about vagal inhibition.  In this regard, Mr Haynes’ written submissions assert that “the judge’s … cross-examination of the pathologist (despite his efforts) failed to remove the obvious possibility of vagal inhibition commencing after initial 15 to 30 second period of non-vagal strangulation.” (emphasis added).  The offensive suggestion which we have italicized has no foundation; the judge was doing no more than clarifying the pathologist's evidence and seeking to ascertain where the question of vagal inhibition fitted in, if at all, to the evidence of petechiae.

75.  The main point made by Mr Haynes in relation to this issue is the contention that in the summing-up the judge trivialised the defence reliance on the possibility of vagal inhibition.  That is because of this comment in the course of the summing-up:

“Mr Haynes was suggesting that some military people around the world are able to kill others by putting their fingers or thumbs on someone’s throat. I do not know if that is a little bit of movieland, members of the jury, or reality, but in any event, there is absolutely no evidence of that and you should ignore that because Dr. Lam’s evidence in this case was that the defendant’s heart would not have stopped at the time those pinpoint bloodspots were forming on her face, and he said it takes 15 to 30 seconds for those pinpoint bloodspots to form, so the deceased’s heart would not have stopped 15 or 30 seconds.”

76.  The suggested trivialisation was the reference to “a little bit of movieland” whereas, Mr Haynes points out, it was accepted by the pathologist that the military use this technique.

77.  We think that the point is exaggerated.  It mattered not whether the military use this technique or not.  What was important was vagal inhibition as a phenomenon in fact and nothing said by the judge detracted from evidence of the existence of that phenomenon.  Indeed, the judge reminded the jury that Dr Lam had agreed that vagal inhibition can cause death quickly.

78.  In the full context of the summing-up, the judge’s aside about military techniques was a matter of no significance and we are satisfied that read in full context, the defence was not trivialised.

The voir dire

79.  A challenge was made to the admission of the evidence as to what the applicant had said to the police on 22 August 2008.  That was not a challenge pursued in relation to the morning session but to the lengthy interview in the afternoon.  The contention was that much of what the applicant said had not been reduced to writing even though it was accepted that the comments recorded in relation to the afternoon interview were comments in fact made by the applicant.

80.  As is evident from the judge’s attempts to secure particulars from counsel in relation to the voir dire, from the interchange which followed and from the submissions made to this Court, the gravamen of the applicant’s case on the voir dire was directed at the exercise of discretion to exclude the evidence, rather than as to any question of voluntariness.  Voluntariness as an issue was not altogether abandoned, the contention being that the applicant was tricked into signing the incomplete statement by a suggestion by the interviewing officer that the interview was only a preliminary one and that the applicant would be given a further chance for a fuller explanation later.

81.  The complaints were:

(1) that the record was incomplete, particularly that it omitted what the applicant said to the police about not intending to harm the deceased;

(2) that the applicant was tricked into signing the incomplete record on a representation that a formal videoed-interview would be conducted later;

(3) that the record of interview was reduced to writing in the police officer’s notebook rather than on prescribed stationery;

(4) that the sergeant who was at the hospital when the applicant was interviewed did not sign the record as a witness; and

(5) that the applicant was not asked whether he wished to write a statement for himself; nor was he asked to write the certificate or declaration at the end of the statement.

82.  The applicant testified on the voir dire.

83.  The police accepted that the Rules relied upon had been breached, but the prosecution case was that the breaches were of no significance not least because of the circumstances in which the record came to be made, namely, that the applicant was hospitalised and, because he was a suicide risk, strapped to his bed.

84.  At the conclusion of the evidence on the voir dire and having heard extensive submissions from Mr Haynes, the judge said:

“I am satisfied beyond reasonable doubt PP74 [ the record of interview] was made voluntarily and in the absence of any force, threat, inducement or deception; nor is there any reason for me to exercise my residual discretion to exclude PP74 as evidence. I accept there were some breaches of the Rules and Directions, but given the circumstances in which PP74 was taken and the nature of those breaches, they resulted in no unfairness and were neither significant nor material. PP74 will be admitted as evidence.”

85.  The grounds of appeal, as originally framed, asserted that “the judge was wrong to reject the defence submission of ‘no case’ as to the voir dire and to state no findings as to patent defects in the police evidence.”

86.  As Mr Haynes rightly conceded at the outset of the hearing of this application, there had been no submission of “no case” on the voir dire.  The thrust of the appeal contention is that the police evidence was inherently incredible and that, given what Mr Haynes referred to as a “conglomeration of blemishes” in that evidence, this was a case in which the judge should have given reasons for his decision.

87.  We do not have the advantage of the transcript of the testimony given upon the voir dire but it seems to us self-evident that, insofar as there was a conflict between the testimony of the applicant and that of the police officers, the judge must have preferred the testimony of police officers.

88.  It will be rare for the failure, on its own, to observe the Rules and Directions for the taking of statements to result in the exercise of a discretion to exclude evidence of the statements and an enormous amount of advocacy was expended in relation to breaches which, in full context, seem to us to amount to not very much.  We are not in the least surprised that the judge did not exercise his discretion in favour of the applicant.

89.  As for the giving of reasons, it is well established in this jurisdiction that it is not necessary for a judge to give grounds for refusing to exercise his residual discretion: see R v Lam Yip-Ying [1984] HKLR 419.  No argument was advanced before us as to whether the (now) constitutionally protected right to a fair trial might in certain circumstances require the provision of reasons after a voir dire but even if that were so, the failure to provide reasons in this particular case is of no consequence because the reasons are self-evident.

The judge’s interventions

90.  We have earlier stated our conclusions in relation to Mr Haynes’ complaints about the judge’s interventions in the course of the trial; about the judge’s warnings that matters were progressing in a way that gave rise to a risk of exposing to the jury the applicant’s prior record; that counsel should give due notice of forensic forays that might require prior discussion with the Bench; and of the refusal to allow a copy of the Rules for questioning suspects to be placed before the jury.  We need say no more on these particular issues, save to repeat our satisfaction that Mr Haynes has established no basis for justifiable criticism of the judge’s conduct.

91.  There is, however, one aspect of the case that has given us cause for particular consideration, which is the second of the interruptions of defence counsel’s closing speech to the jury and the nature of the exchange between counsel and the Court in the presence of the jury.

92.  The essence of Mr Haynes’ submissions in this regard was that there was no warrant for the interruptions of his speech, that if there was to be an interruption, the judge ought to have canvassed his concerns in the absence of the jury, and that the nature of the judge’s comments were such as to put him off his stride and to undermine his standing in the estimation of the jury so that the applicant was not accorded the benefit of the speech to which he was entitled and that that amounted to a material irregularity.

93.  In the normal course of events, counsel’s closing speech to the jury ought to be permitted to proceed without interruption by the trial judge.  It occasionally happens that counsel says something in the course of his closing speech which is inaccurate, either as a matter of law or as a recollection of evidence, or which is otherwise misleading or is materially irrelevant.  In such an event the judge will be duty bound to put the matter right.  The timing for doing so and how the judge does so will depend on the nature of the particular mishap, its context and the ‘feel’ of the occasion.  Often the matter can be corrected satisfactorily by leaving it until after counsel’s speech or to the summing-up.  If the judge decides that the matter which is going awry in the course of the speech is such that an immediate interruption is called for, the question will arise whether it is better to do so by first asking the jury to retire.  It will not always be necessary to ask the jury to retire and sometimes undesirable to do so because if the interruption is to be relatively non-contentious and brief, sending the jury out may aggravate the hindrance to the flow of counsel’s speech.  So, for example, when Mr Haynes in this case started talking about possible changes to the law in England and the judge, correctly in our view, decided that that was an unhelpful diversion, he sensed – and these matters are inevitably a question of instant judgment – that a one-line reminder that the law was for the judge sufficed there and then and we see that counsel, without discomfort, merely carried on with his speech.

94.  What, at the end of the day, matters in this context is whether an interruption has or may have occasioned prejudice to the defendant’s case in the minds of the jury.  It is commonplace in trials for counsel to be corrected by the judge in the presence of the jury and it would be idle to suppose that the jury inevitably holds a correction as something counting against the client or against the merits of his case.  The jury will know, because it is told so, that matters of law are for the judge and it will be apparent to any jury that it is for the judge to manage and control a case according to law. Conversely, there may be instances in which a judge makes such disparaging comments of counsel, or of points he is advancing, as unacceptably to prejudice the merits of the defence case in the minds of the jury and it is against that possibility against which one must guard.

95.  In Randall v R [2002] 2 Cr App R 17, observations were advanced as to the rules which should be followed in order to ensure a fair trial.  They included observations about the trial judge’s task.

“10. [The judge] must neither be nor appear to be partisan. If counsel begin to misbehave he must at once exert his authority to require the observance of accepted standards of conduct. He should not disparage the defendant in the course of the evidence. Nor should he disparage defence counsel, since jurors inevitably tend to identify clients with their counsel. Sometimes a trial judge may have briefly to check or rebuke counsel. If however he has occasion, in any serious or sustained manner, to criticise the conduct of the defence case or to criticise or rebuke defending counsel, it will usually be prudent for the judge to do so in the absence of the jury and he should ensure that his disapproval of or irritation with counsel does not affect the jury’s judgment. If he chooses to express personal opinions in the course of the summing up, he should do so in a restrained, moderate and balanced way.

11. It cannot be too strongly emphasised that these are not the rules of a game. They are rules designed to safeguard the fairness of proceedings brought to determine whether a defendant is guilty of committing a crime or crimes conviction of which may expose him to serious penal consequences. In a criminal trial as in other activities the observance of certain basic rules has been shown to be the most effective safeguard against unfairness, error and abuse.

…

28. While reference has been made above to some of the rules which should be observed in a well-conducted trial to safeguard the fairness of the proceedings, it is not every departure from good practice which renders a trial unfair. Inevitably, in the course of a long trial, things are done or said which should not be done or said. Most occurrences of that kind do not undermine the integrity of the trial, particularly if they are isolated and particularly if, where appropriate, they are the subject of a clear judicial direction. It would emasculate the trial process, and undermine public confidence in the administration of criminal justice, if a standard of perfection were imposed that was incapable of attainment in practice. But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.”

96.  In the event, the sole question is whether there is a realistic risk that the judge’s intervention on the subject of the reasonable man, and, most particularly, the comment not to manufacture points, impacted unfairly on this crucial issue in the case, namely, whether the prosecution had proved that a reasonable man would not have acted as had the applicant.

97.  We were concerned to know from Mr Haynes in the course of the hearing of this application how, to his mind, when he made the submissions, he thought the jury was going to be assisted by a discourse on history and philosophy.  The effect of his answer was that he intended to tell the jury that the development of provocation came from humanitarian considerations and compassion since the penalty for murder was fixed and that his explanation, given in his own way, might assist the jury to a sympathetic verdict on provocation.

98.  Some judges would have let Mr Haynes proceed and it may be that in this particular instance it would have been better had the judge not interrupted.  But we can understand why he did so.  There was, with respect, a tendency on Mr Haynes’ part to meander and he had already attempted to canvass the move in England to “reconstruct” the law of provocation.  The judge was concerned that the jury should not be confused about the state of the law as it presently stood and it is that concern which no doubt prompted his intervention.

99.  It would clearly have been better, however, particularly given the history of counsel’s combative approach, had the judge asked the jury to retire once it became apparent that the exchange between Bench and Bar was not going to be brief.  No doubt the judge had to weigh in the balance whether sending the jury out would be more disruptive than helpful and it is relevant to note that the judge asked counsel whether he wanted the jury to be sent out and counsel said ‘No’.  Indeed, counsel saw fit in the presence of the jury to persist in the debate and to suggest to the judge, in the jury’s presence, that the judge was prohibiting him from presenting his arguments in the way in which he wanted.  It was in relation to that contention that the judge told counsel not to manufacture points and indeed that is how Mr Haynes has understood that comment, for in the course of this application his retort to that stricture was that the stricture was not fair because, the judge was in truth, said Mr Haynes, prohibiting him from presenting arguments in the way in which he wanted.  There is no suggestion made that the stricture amounted to a suggestion that counsel was manufacturing issues of evidence or propositions of law.  Indeed, the judge made it clear, in the presence of the jury, that it was perfectly open to Mr Haynes to talk about the reasonable man but that the long and short of the judge’s concern was that the history of the offence of murder and the philosophy behind the defence of provocation was not going to assist the jury; and we are satisfied that is how the jury would have understood the judge’s objection.  We note as well that there was no suggestion by Mr Haynes after the close of the speech that he had been put off his stride, that his client had thereby or otherwise been prejudiced by the interruption and that therefore the jury should be discharged.

100.  The overall impact of this intervention and the nature of the comments made must be viewed as well in light of the fact that this was a relatively brief interruption on a discrete topic in the course of a lengthy speech and, more importantly, in the light of the content and nature of the summing-up which followed.

101.  The summing-up made it clear that apart from the issue of intent to kill or cause serious bodily harm, there was but one live issue, which was whether or not the prosecution had proved to the requisite standard that a reasonable person would not have reacted in the way the applicant did to the established provocation. It was, said the judge, “where the real issue lies”.  In other words, there was in relation to the defence of provocation no issue of fact, for it was accepted that the jury was to proceed on the basis that the applicant had been provoked to lose his self-control.  Throughout the summing-up there were references to the defendant’s side of the case.  It placed fairly before the jury the issue between the parties and there was repeated reference in the summing-up, couched in an entirely non-contentious and respectful manner, to points made by Mr Haynes on behalf of the applicant.  The judge directed the jury carefully and accurately on the law relating to provocation and the reasonable man and in some detail reminded them of the factors which according to the defence might motivate a reasonable man to act as did the applicant.

102.  In the circumstances we are satisfied that the fact and nature of the interventions during the speech did not amount to a material irregularity and do not render the conviction for murder unsafe and unsatisfactory.

Result

103.  We think that the second intervention of counsel’s speech gave rise to an arguable ground of appeal for which reason we grant the applicant leave to appeal against conviction but, treating the hearing of the application as the appeal, and for the reasons which we have given, the appeal is dismissed.