Hong Kong Judgment

Court of Appeal

HKSAR v. NGAN LAK KWONG

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Source document

01

Holding and result

When the impugned direction is read in its full context and as part of the statutory two-limb test ('would or may'), it is not a misdirection of law; the court therefore refused to certify the proposed question of law of great and general importance.

Court disposition

Application for certificate declined; no certificate granted.

Orders

  • Certificate of law of great and general importance refused
  • No further relief granted

02

Material facts

Parties

Applicant (CACC 14/2010)

Applicant Counsel: Gerard McCoy SC, instructed by Lam & Lai, assigned by DLA

Applicant (CACC 405/2011)

Applicant Counsel: Gerard McCoy SC, instructed by C. Yu & Co., assigned by DLA

Respondent (HKSAR)

Respondent Counsel: Kevin P. Zervos & Sabra SY Lo, Department of Justice

03

Procedural history

  1. Posture

    Criminal Appeal Against Conviction (murder) and Application for Certificate of Law of Great and General Importance / Application for Certificate; Court Declining to Grant Certificate After Hearing

04

Questions and positions

Legal issues

Party arguments

Applicant
Mr McCoy SC submitted that the standard two-limb direction ('would or may') is inconsistent with the impugned phrase and that the impugned phrase wrongly asks juries to consider only the effect of conduct on an ordinary person rather than whether it would or may cause that response, thereby amounting to a misdirection of law.
Respondent
The Court/Respondent submitted that when read in full and in context the impugned phrase is not a misdirection; the statutory test requires consideration whether a reasonable person would, or may, respond as the accused did, and the impugned words, properly contextualised within the full direction, do not create the suggested inconsistency; accordingly no certificate should be granted.

05

Court’s reasoning

  1. 01

    Homicide Ordinance (section 4) and para 138 of the judgment (Ngan Lak-kwong)

    The provocation/homicide statutory test requires the jury to consider whether, on the facts, the act(s) or words which caused the accused a sudden and temporary loss of self-control would or may cause a reasonable person to lose self-control and behave as the accused did.

  2. 02

    Appellate jurisprudence as applied in the Court's judgment

    Context and the entirety of directions to the jury determine whether particular phrasing amounts to misdirection; isolated phrases may be misleading if taken out of context.

06

Ratio, limits and disposition

Ratio decidendi

When the impugned direction is read in its full context and as part of the statutory two-limb test ('would or may'), it is not a misdirection of law; the court therefore refused to certify the proposed question of law of great and general importance.

Obiter and limits

  • The question for certification as posed was non-contextual and failed to address the overall impact of the full directions and the ultimate question posed to the jury.
  • The court did not decide whether earlier comments in Ho Hoi Shing were obiter in the relevant passage and noted that point was not resolved in this decision.

Court disposition

Application for certificate declined; no certificate granted.

  • Certificate of law of great and general importance refused
  • No further relief granted

Source and reliance status

Court of Appeal · 26 October 2012

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Judgment reading view

Judgment text

The complete available source text.

Source document

Court of Appeal

Judgment· 26 October 2012

HKSAR v. NGAN LAK KWONG

bjbj RIQ) imWS) Court Date of Hearing: 26 October 2012 Date of Judgment: 26 October 2012

J U D G M E N T Hon Stock VP (giving the judgment of the Court): On 15 August 2012 and 20 September 2012 respectively this Court albeit differently constituted to each case dismissed the applications for leave to appeal against conviction for murder in Ngan Lak kwong and Tam Ho Nam. One common issue in both cases was whether the judge was wrong to have put to the jury the direction you must take into account everything which was done according to the effect which, in your opinion, it would have on that ordinary person . The Court held that placed in proper context the direction was not a misdirection. Each applicant through Mr McCoy SC now asks this Court to certify the following as a question of law of great and general importance: Under the law of provocation, is it a misdirection in law to direct the jury that when considering the usual question Was or may that conduct have been such as to cause an ordinary and sober person of the accused s age, sex and personal circumstances to do as he did? that ...you must take into account everything which was done according to the effect which, in your opinion, it would have on that ordinary person (emphasis added)? McCoy suggests that the two limbs are inconsistent one with the other and that the second limb is a misdirection in that it asks the jury to consider what impact provocative conduct in a case would have on an ordinary person

rather than what impact it would or may have. The question posed for certification is, we suggest, somewhat non-contextual for it does not address the overall impact of the directions and the ultimate question which the jury is asked to consider. The standard direction poses to the jury the key question: Was or may that conduct have been such as to cause an ordinary and sober person of the defendant s age and sex to do as he did ? And concludes by telling the jury that your answer is that what was done and/or said would or might have caused an ordinary, sober person of the defendant s age and sex to do as he did, your verdict will be Not guilty of murder but guilty of manslaughter by reason of provocation. (Emphasis added) Further, we do not, with respect, agree that, if read in full, there is the suggested inconsistency or that the directions give rise to the danger that Mr McCoy suggests. We explained the intended effect of the full directions and the place within them of the impugned direction at para 138 of our judgment in Ngan Lak-kwong: 138. [Section 4 of the Homicide Ordinance {from which the impugned direction is drawn}] requires the jury to consider how a reasonable person would respond to the provocation offered. The answer may be one of the following three, namely (1) a reasonable person would not respond as the accused did; (2) a reasonable person would respond as

the accused did; or (3) a reasonable person may respond as the accused did. If it is the 2nd or 3rd answer, then the prosecution has not negated provocation. Although the jury must ask themselves how a reasonable person would respond, the ultimate question for determination is whether on the facts found in the case, the act or series of acts done and/or words spoken which caused in the accused a sudden and temporary loss of self-control would or may cause a reasonable person to lose his or her self-control and to behave as the accused did .... Looked at out of context, the impugned direction ( take into account according to the effect it would have on that ordinary person ) may be said to be problematic but not in its true context. This reasoning, wherefor we decline the certificate requested, does not address whether the point has already been decided by the Court of Final Appeal in Ho Hoi Shing HKSAR (2008) 11 HKCFAR 354 at 367 or whether that Court s comments were, as Mr McCoy suggests, obiter because the question was not, he informed us, then in argument. For the reasons we have given, we decline to grant the certificate requested. (Frank Stock) Vice-President (W Yeung) Vice-President (Michael Lunn) Justice of Appeal Mr Kevin P. Zervos & Ms Sabra SY Lo of Department of Justice for the Respondent Mr Gerard McCoy, SC, instructed by Lam & Lai, assigned by DLA, for the Applicant (in CACC 14/2010) Mr Gerard McCoy, SC, instructed by C. Yu & Co., assigned by DLA, for the Applicant (in CACC 405/2011)

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Ho Hoi Shing HKSAR (2008) 11 HKCFAR 354 at 367

Case cited

Ngan Lak-kwong (referenced)

Case cited

Tam Ho Nam (referenced)

Case cited

Homicide Ordinance (section 4)

Legislation

Legislation referenced in the available case record.

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