In HKSAR v Tam Ho Nam, FACC 3/2017, it was not in dispute that the appellant (then aged 18) killed his girlfriend who was found to have sustained 64 wounds. The appellant claimed that at the time of killing the deceased, he lost self-control. He relied on the partial defence of provocation to the charge of murder provided for in s. 4 of the Homicide Ordinance (Cap. 339). By a majority of 6 to 1, the jury convicted the appellant of murder.
The prosecution conceded the appeal to the Court of Final Appeal on the ground that there had been a misdirection by the trial judge in the summing up to the Jury. At issue was whether, if the appeal was allowed by the Court quashing the conviction without substituting a conviction for manslaughter, there should be a re-trial.
Both the appellant and the respondent in their joint case to the Court of Final Appeal relied on an earlier decision of the Court in HKSAR v Liang Yaoqiang (2017) 20 HKCFAR 1. In Liang Yaoqiang, the Court considered the direction to the jury on how to address the issue as to whether an ordinary person would have done what the Applicant did when considering the objective limb of the defence of provocation in the particular circumstances of the case. The Court concluded that the words “do as he did” in s. 4, properly constructed in the light of the context and purpose of s. 4 and the underlying policy of the law to mitigate the penal consequences of a killing carried out in the frenzy of a loss of self-control, meant “to kill the victim by whatever means” rather than to kill the victim in exactly the manner the defendant did. The appeal was allowed and the appellant’s conviction for murder was quashed. On the issue of re-trial, the Court took the view that although this would mean a third trial for the appellant, and further delay during which he would be remanded in custody, it was in the interests of justice to order a re-trial.
In this case, it was impermissible for the jury to reason that (1) notwithstanding the defendant was in fact provoked to lose his self-control, (2) the scale of the retaliation was out of proportion, so that (3) the objective question to be asked in assessing whether the defence of provocation was made out should necessarily be answered against him. Where there is a real risk of that impermissible line of reasoning being followed, the Court held that a suitable direction to counteract that risk should be given by the trial judge. This material special direction had been omitted (the Court’s decision in Liang Yaoqiang was not then available).