HKSAR v. LEE WAI MAN

CACC 82/2019 [2020] HKCA 485 in the high court of the hong kong special administrative region court of appeal criminal appeal no 82 of 2019 (on appeal from HCCC NO 432 of 2017)

BETWEEN

HKSAR Respondent and LEE Wai-man (李偉民) Applicant Before: Hon Macrae VP, McWalters JA and Zervos JA in Court Date of Hearing: 3 June 2020 Date of Judgment: 3 June 2020 Date of Reasons for Judgment: 12 June 2020

R E A S O N S F O R J U D G M E N T The Court: The applicant was unanimously convicted on 5 March 2019 before D’Almada Remedios J (“the judge”) and a jury of the murder of TING Yun-kwong (“the deceased”), contrary to Common Law and punishable under section 2 of the Offences against the Person Ordinance, Cap 212. He duly filed Notice of Application for Leave to appeal against his conviction. On 3 June 2020, we granted the applicant leave to appeal, allowed his appeal and quashed his conviction. Having heard argument as to the disposal of the appeal, we ordered that the applicant be retried on a fresh indictment before another judge. The applicant was originally represented for the purposes of this appeal (but not the trial) by the late Mr Gerard McCoy SC, who had filed six perfected grounds of appeal against conviction on his behalf. Those grounds of appeal were amended by Mr David Boyton, who was subsequently instructed to appear on behalf of the applicant in place of Mr ‍McCoy. However, one ground in particular, namely Ground 2, remained unaltered, and it is only that ground with which we are now concerned. In essence, Ground 2 complains that prosecuting counsel at trial, in his closing address, invited the jury to consider the proportionality of the applicant’s response to the alleged provocation in using a knife to stab the deceased when he had only been pushed or punched

with a fist. In doing so, he encouraged them to adopt an impermissible line of reasoning when answering the objective question of “whether the provocation was enough to make a reasonable man do as he did”, within the meaning of section 4 of the Homicide Ordinance, Cap 339; a danger which the judge did not dispel in her directions to the jury. On 12 December 2019, both Mr McCoy and Mr ‍William ‍Tam ‍SC, on behalf of the respondent, filed a joint written submission indicating their collective view that prosecuting counsel at trial had, by his remarks, indeed created the risk of the jury adopting an impermissible line of reasoning, which the judge had failed to remedy in her summing-up. Both counsel were in further agreement that, if the Court were minded to accept their joint submission, a retrial should properly be ordered in accordance with section ‍83E(1) of the Criminal ‍Procedure Ordinance, Cap 221. However, on 27 May 2020, Mr Boyton wrote to the Court to indicate that while he was in general agreement with the joint submission of his predecessor and Mr Tam, he had “reservation” about the appropriate order to be made in the event that the conviction was quashed, and wished to argue that the Court could, in accordance with the evidence, substitute a verdict of manslaughter, on the basis of diminished responsibility, under section 83A of the Criminal Procedure Ordinance. We

shall address his reservation when we deal with the disposal of the case at the conclusion of this judgment. First, however, it is necessary to advert briefly to the facts in order to explain why we agree with the joint submission of counsel that the applicant’s conviction cannot stand. The prosecution case The prosecution called nine witnesses, five of whom were civilian witnesses present at the scene at some stage on the night in question and able to speak to what took place between the deceased and the applicant. The truthfulness and reliability of their various accounts of what happened does not appear to have been in issue. It was also not disputed that the applicant caused the death of the deceased by stabbing him with a knife in an open area near a staircase behind the shopping centre in Fu Heng Estate in Tai Po, New Territories at about 2:45 am on 9 December 2016. It was the prosecution case, however, that the stabbing was a planned, premeditated revenge attack by the applicant, following earlier verbal abuse from the deceased and a physical altercation between the deceased and the applicant. The applicant had originally encountered the deceased and his son (PW1) at an open area near the shopping centre in question at about 11 ‍pm on 8 December 2016. At that time, the applicant appeared to be unsteady and staggering as he walked. The applicant then started to interrupt

the conversation of the deceased and his son. The deceased reacted by telling the applicant loudly and several times to stop interrupting and go away. However, the applicant still lingered in the area and continued making a nuisance of himself. At about 1:45 am on 9 December 2016, the deceased had a fight with the applicant, in which the applicant fell to the ground. The applicant then left the shopping centre. Sometime later, the deceased and the applicant met again at the staircase of the same shopping centre. By that time, the applicant was wearing a windbreaker and a hood, together with a mask, and was armed with a knife. The deceased engaged in a physical tussle with the applicant, in which the applicant was blocked and pushed down the staircase. During the struggle, the deceased was stabbed by the applicant. An ambulance arrived shortly thereafter and an ambulance attendant found the deceased with a knife sticking out of his brown jacket near the left part of his abdomen. He extracted the knife and, having administered emergency treatment, conveyed the deceased to hospital. The deceased was certified dead at about 3:45 am on the same day, the cause of death being the stab wound to his left abdomen. The defence case The applicant elected not to testify. The defence case was that the applicant was not guilty of murder but guilty of manslaughter by reason of diminished

responsibility; alternatively, that he was guilty of manslaughter by reason of provocation. Although there was no oral evidence from the applicant in respect of provocation, it was the defence case on this issue that the applicant’s killing had been provoked by the deceased when he (the deceased) had excluded the applicant from their conversation, told him to go away in a loud voice, struck him down during a fight and, immediately before the killing, blocked his way on the staircase and then pushed him down the staircase. Prosecuting counsel’s closing address The ground of appeal which concerns us hinges upon the closing speech to the jury of prosecuting counsel, Mr Terence Wai who acted on fiat for the prosecution. The relevant parts of his speech, for present purposes, are as follows: “So can the defendant be said to have been provoked by the deceased’s acts into stabbing him with a knife? ….. However, if you take the view that the defendant was or might have been provoked, then you must ask yourselves this question: was or may the deceased’s conduct have been such as to cause an ordinary and sober person of the defendant’s age and sex to ‍do as he did; namely, by stabbing the deceased with a knife, an ordinary person of the deceased’s (defendant’s?) age and sex?” (Emphasis supplied) Prosecuting counsel then invited the jury to consider the proportionality of the applicant’s

response to the alleged provocation: “And then in the consideration of the defence of provocation, one crucial factor is the relationship between the gravity of the provocation and the way in which the defendant retaliated. The gravity between the two, meaning there should be some sort of a proportion. I would submit that if I hit you with fist and you respond by stabbing me with a knife, then the response is way more serious and grievous than the so-called act of provocation which is by means of bare hands, the fist. So that’s the idea of the proportionality between the gravity of the provocation and the way in which a person retaliated to such a provocation. ….. “But an important fact to bear in mind is that the deceased was doing all that with his bare hands. He wasn’t armed. Neither he nor Man Chai was armed in any way. The deceased was making movements with his arms with his bare hands and was seemingly engaged in some sort of exchange of blows with the defendant whilst he was forcing him down the stairs, in the words of Man Chai. So therefore, even if the deceased’s acts were seen as provoking or provocative, the prosecution say that the defendant’s response by stabbing him with a knife far exceeds the gravity of the provocation if that was one, and that would not be the way an ordinary and sober person of the defendant’s age and sex would react.” (Emphasis

supplied) Finally, prosecuting counsel submitted that provocation would be disproved if the jury found that the applicant’s response was disproportionate to the deceased’s alleged provocation: “So the prosecution say the defendant’s reaction far exceeded the gravity of the provocation even if you were to find that the deceased and Man Chai’s acts in the staircase were provocative. So in those circumstances, the prosecution would submit that we have disproved this defence of provocation.” (Emphasis supplied) It will immediately be seen, from the passages emphasised above, that prosecuting counsel was explicitly inviting the jury to find that the applicant’s response in using a knife to stab the deceased was out of all proportion to any alleged provoking conduct offered by the deceased. Accordingly, it was argued that it could not amount to the partial defence of provocation in law. Rather surprisingly, Mr Alex Ng, counsel acting on behalf of the applicant at trial, did not take issue with these comments nor did he ask the judge to repudiate them in her summing-up. The summing-up When addressing this issue in the summing-up, instead of correcting prosecuting counsel’s remarks to the jury, the judge appeared to endorse them: “If however, you find the defendant -- that the deceased and other’s conduct was provoking and that conduct caused the defendant, or might have caused the

defendant to have been provoked, that is to lose his self-control, then the prosecution says an ordinary sober 48-year old Chinese male who possesses the power of self-control when faced with these things, would not cause to do what the defendant did. That is, would not stab the deceased with the knife and kill him or intend to cause him really serious harm. So it is the prosecution case that the defendant was not provoked. ….. Mr Wai for the prosecution says, as these acts were all planned as a revenge attack on the deceased, the defendant was not provoked. In any event, Mr Wai says the gravity of provocation was not proportionate to the manner in which the defendant retaliated. You will recall Mr Wai gave you the example, he said, if you use a fist but then someone uses a knife to stab you, that far exceeds the provocation. So it is the prosecution case, the defendant’s response far exceeds the provocation of the deceased and others, if you accept that there was, and that would not be the way an ordinary person would react. So Mr Wai for the prosecution says that they have disproved the act of provocation.” Discussion We agree with the parties that prosecuting counsel’s submissions to the jury, uncorrected and repeated by the judge, raised the very danger which the Court of Final Appeal in HKSAR v Liang Yaoqiang specifically addressed, at para ‍115 of its judgment: “In view

of the proper construction of the words “do as he did” as set out in Section D.3 above, there is a risk that, without a proper direction, the jury may embark on a line of reasoning that would, on that construction be impermissible. Thus, the line of reasoning represented by the prosecution’s closing speech to the jury in the appellant’s trial …, which asks it to reason that: (a) notwithstanding that he was in fact provoked to lose his selfcontrol; (b) the scale of the retaliation was out of proportion to the provocation offered; so that (c) the objective question should necessarily be answered against him; is an impermissible line of reasoning.” The judge could still, however, have redressed the dangers of prosecuting counsel’s speech by judicial direction. Unfortunately, not only did the judge appear to endorse his argument by repeating it, the error was compounded by the judge reiterating prosecuting counsel’s submission that a reasonable man would not have done what the applicant did when provoked, “…that is, would not stab the deceased with the knife and kill him …”, which was a formula specifically disavowed by the Court of Final Appeal in Liang Yaoqiang, at paras 113-114 of its judgment. With respect to the judge and counsel involved at the trial, particularly prosecuting counsel but also defence counsel who failed to be alert to the dangers of his opponent’s address to

the jury, we are dismayed to see a mistake such as this still being made more than two years after the judgment of the Court of Final Appeal in Liang Yaoqiang. We acknowledge that the law of Hong Kong concerning provocation has not been reformed as it has been in many other common law jurisdictions, and that it will continue to present particular difficulties for trial judges and counsel in its present form; especially where provocation is mounted as a defence in conjunction with other defences, in particular diminished responsibility. We note that the common law defence of provocation in the United Kingdom was abolished more than a decade ago, and section 3 of the Homicide Act, 1957 (the United Kingdom equivalent of section 4 of the Homicide Ordinance in Hong Kong) replaced by sections 54 and 55 of the Coroners and Justice Act, 2009; while in New Zealand and three States in Australia (Tasmania, Victoria and Western Australia), provocation is now only taken into account in sentencing. We would urge the Secretary ‍for Justice to consider referring the reform of this area of the law to the Law Reform Commission of Hong Kong. Nevertheless, until reform takes place, and we hope that in due course it will, all parties to the proceedings will have the benefit of the judgment in Liang Yaoqiang and other kindred decisions of the Court of Final Appeal and the Court of Appeal, with which

they are expected to properly and fully familiarise themselves. Furthermore, this is precisely the sort of area of the criminal law in which the profession could well derive assistance from a programme of continuing professional development. Indeed, this case well illustrates both the need for such a programme and the benefits it could provide to practitioners. We considered that we had no alternative but to allow the appeal on this ground alone, since it was clear that the jury were being encouraged to pursue a line of reasoning in respect of the applicant’s partial defence of provocation which was fraught with danger and contrary to the express guidance and instruction of the Court of Final Appeal. Accordingly, we quashed the conviction and set aside the sentence, without the need to address the other grounds of appeal. We now turn to the appropriate disposal of this matter. Order for retrial Although Mr Boyton expressed his reservation as to the ordering of a retrial for murder and proposed that we could substitute a conviction for manslaughter by way of diminished responsibility, he recognised that this would be the first retrial of the applicant, there has not been undue delay in bringing this matter to trial or appeal and there would be no prejudice to the defence if a retrial were to be ordered. Moreover, the recent case relied upon by Mr Boyton of HKSAR v Husnain

Safdar, in which this Court substituted a conviction for murder with one of manslaughter, on the basis of diminished responsibility, was entirely different. In Husnain Safdar, all of the expert witnesses, both for the prosecution and for the defence, were in agreement that the appellant was suffering from a disease of the mind. The Court held that in those circumstances, the interests of justice did not require the ordering of a retrial: “In fact the interests of justice required the very opposite. We had no doubt that the original decision of the Director of Public Prosecutions was the correct one, especially once we had enjoyed the benefit of reading the evidence of all three psychiatrists. Here the evidence showed that at the time of the killing the appellant was, in the words of Lord Hughes, ‘plainly mentally unbalanced’ and that questions of whether he suffered from SIPD and whether that disorder ‘substantially impaired his mental responsibility for his acts’ were, in reality, ‘non-issues’ which to unnecessarily rehearse at length would only be ‘both expensive to the public and distressing to many of those involved, whether as witnesses, or relatives of the deceased, or as defendants and their families’.” By contrast, in the present case, neither of the two prosecution experts, Dr ‍Oliver Chan (PW8) or Dr Bonnie Siu Wei-man (PW9), accepted that the applicant was suffering

from an irresistible craving or compulsion to drink, while the defence expert, Dr Li Cheuk-wing (DW1), considered that the applicant was “close” to having an inability to resist drinking but it could not be said that he had an irresistible craving. We do not think ‍this evidence has any resemblance to that presented before the Court in Husnain ‍Safdar. There is a clear issue for the jury to determine and it is not for this Court to usurp that task. Accordingly, we were of the decided view that the interests of justice required that the applicant be retried on a fresh indictment for murder before another judge, and we so ordered. (Andrew Macrae) Vice President (Ian McWalters) Justice of Appeal (Kevin Zervos) Justice of Appeal Mr William Tam SC, DDPP, of the Department of Justice, for the Respondent Mr David Boyton, instructed by Johnnie Yam, Jacky Lee & Co, assigned by the Director of Legal Aid, for the Applicant