Court of Final Appeal, Final Appeal No. 5 of 2021 (Criminal)
 HKCFA 26
Chief Justice Cheung, Mr. Justice Ribeiro PJ, Mr. Justice Fok PJ Mr. Justice Tang NPJ and Mr. Justice French NPJ
21 July 2021
Enough is Enough
There was no dispute that the Appellant killed the deceased on 12th September 2009 in the flat where they cohabited by chopping her approximately 213 times. The Appellant denied the charge of murder but had been prepared all along to plead guilty to manslaughter by reason of provocation.
The defence case on provocation was essentially that the Appellant suspected that the deceased was having an affair with another man. Used condoms had been found (on several occasions) by the Appellant in a rubbish bin outside the flat. In the afternoon of 11 September 2009, the Appellant confronted the deceased with a used condom found in the rubbish bin which he said was still warm. The deceased taunted him about becoming a garbage collector, his poor performance as a sexual partner, and that he was not his daughter’s father and she had been fathered by a man who had an affair with his ex-wife. The deceased twice thrust the used condom into his face near his mouth, asking him to eat it so that he would stop asking her about her new boyfriend. The Appellant claimed that he then lost control and his mind went blank. He fetched a knife from the kitchen, attacked the deceased frenziedly and killed her.
At his first trial, the Appellant was unanimously found guilty of murder. The Court of Appeal (“CA”) allowed his appeal as impermissible hearsay evidence had been adduced at trial, quashed the conviction and ordered a retrial.
At the second trial, the Appellant was again convicted of murder by a unanimous verdict of the jury. The CA by a majority refused leave to appeal against conviction but the Court of Final Appeal (“CFA”) allowed the appeal on the basis that the trial judge’s directions to the jury were insufficient. The conviction was quashed and a second retrial was ordered.
At the third trial, the defence adduced psychiatric evidence to put forward the defence of diminished responsibility, in addition to the original defence of provocation. Prior to her summing up, the trial judge prepared draft written directions for counsels’ comments. The draft directions referred to the psychiatric evidence but not in the context of provocation. Leading defence counsel commented that the psychiatric evidence was relevant to the objective question of whether an ordinary sober person would have been provoked given the Appellant’s circumstances. However, no mention was made of its relevance to the factual question of whether the Appellant had or might have lost his self-control. The trial judge directed the jury accordingly and the jury unanimously returned a guilty verdict of murder.
On appeal, the CA unanimously agreed that the psychiatric evidence was “highly relevant” to the factual issue of loss of self-control, and that the failure to direct the jury on the issue “went to the heart of the subjective aspect of the defence”. The appeal was allowed and the conviction quashed. The CA was, however, divided in its judgment as to whether a third retrial should be ordered (Macrae VP and Zervos JA in favour of a third retrial, McWalters JA dissenting).
The CFA held, in unanimously allowing the appeal, quashing the order for a third retrial, entering a conviction for manslaughter on the basis of provocation and sentencing the Appellant to a sentence that would allow for his immediate release from custody, that:
- McWalters JA was correct when he pointed out that “the more often the defendant has to face trial, the greater the ordeal will be for him, and the less fair the criminal justice process will be perceived to be”. The Appellant had already undergone three full trials, and appeals in the Court of Appeal, as well as two appeals in the CFA over the last 11 years. There must come a point at which the question – what do the interests of justice require? – is answered by saying “enough is enough”, and to order another retrial would simply be oppressive to the defendant.
- The Appellant had already been remanded in custody for almost 12 years. That is equivalent to a starting point of almost 27 years’ imprisonment given the conventional 1/3 discount for his early plea of guilty (to manslaughter), as well as another 1/3 remission for good behaviour. If upon retrial, he were only found guilty of manslaughter, a starting point of almost 27 years’ imprisonment would be way beyond the higher end of the usual range of sentences for manslaughter, even after taking into account the horrendous manner in which the killing was committed.
- After the lapse of almost 12 years, the quality of the evidence as well as the demeanour of the witnesses are bound to be affected.
- Unlike those cases where the choice faced by the court was either to order a retrial or to let the accused go free without any conviction, not ordering another retrial here would not mean the Appellant could leave as an innocent man as he would still be convicted and sentenced for manslaughter.
- It was true that the Appellant had been convicted of murder three times by three juries. However, the defence of provocation which was supported by the Appellant’s story, the deceased’s former husband’s evidence, the circumstances under which the killing took place and the psychiatric evidence, was at least reasonably arguable and a murder verdict was certainly not a foregone conclusion.
- The quashing of the convictions in the first and third trials was in part due to mistakes contributed to by defence counsel but they carry little if any weight when considering how the discretion should be exercised given their nature.
- To conclude, this matter had reached a point where enough was enough, and the interests of justice were no longer served by continuing with the prosecution of the Appellant for murder. Rather, a conviction for manslaughter on the basis of provocation should be entered on the Appellant’s plea of guilty and the Appellant sentenced accordingly, thereby bringing finality and closure to this tragic case.