THE QUEEN v. AU KWOK WAH
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IN THE COURT OF APPEAL
1987, No. 350
(Criminal)
BETWEEN
THE QUEEN
and
AU KWOK WAH
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Coram: Yang, Ag. C.J., Barker & Power, JJ.A.
Date: 11th December, 1987
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JUDGMENT
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Yang, Ag. C.J.:
1. This is an application for leave to appeal against conviction for murder.
2. The case for the prosecution was that the applicant went to the victim's premises to commit a robbery, and in order to combat the victim when she resisted, he murdered her with a knife.
3. The applicant in his evidence said that he went to her place to ask for repayment of money which he had lent her earlier and that when, the victim refused to repay him, a violent quarrel ensued, in the course of which, the victim having stabbed him in the leg, he wrestled the knife from her. He said that because of this provocation from the victim, he lost his self-control and stabbed her many times, thereby killing her.
4. It appears that after the killing he took the knife with him, climbed down the drainpipe and went home. There he made his peace with members of the family, went to a hospital to have his leg treated and surrendered to a police officer who was on duty at the hospital. This conduct, it was suggested, could not indicate that he had deliberately murdered the victim.
5. The sole issue at the trial was whether the applicant had acted under provocation. It was argued that the trial judge's direction on provocation was confusing, in that the judge had failed to give a clear direction. The complaint is that the judge referred both to "a reasonable man" and, at a later stage of his direction, to "a reasonable man with the characteristics of the applicant".
6. It is argued that the jury might have been confused when they came to deal with the question of provocation as to whether they ought to take into account the reaction of "a reasonable man" simpliciter or that of "a reasonable man with the characteristics of the applicant".
7. Having read the summing-up as a whole we cannot say the judge erred in the manner complained of. The judge quite clearly explained what the terms "provocation" and "a reasonable man" meant.
8. In addition to what counsel for the applicant has argued, the applicant himself also addresser this court. His address added nothing as he simply repeated to this court the evidence he had given in the court below and attempted to explain in what circumstances a man of his age, i.e. 35, would or would not lose his self-control.
9. In the circumstances, therefore the application must be refused.
| T.L. Yang |
G. Alderdice (D.L.A.) for Applicant
A.P. Duckett, Q.C. & Stephen Wong for Crown/Respondent