Luc Thiet Thuan v R. (Hong Kong) [1996] UKPC 57

Judicial Committee of the Privy Council
Case No Privy Council Appeal No. 31 of 1995Venue FROM THE COURT OF APPEAL OF HONG KONG
Between
Luc Thiet ThuanAppellantR. (Hong Kong)Respondent
Before
Lord Goff of ChieveleyLord SteynSir Brian HuttonSir Michael Hardie BoysDate 26 March 1996
[1]agreed. The essential features of Lord Diplock's analysis were as follows. First, having traced the development of the doctrine of provocation at common law, he identified (at pages 716B-C) the intention of section 3, which recognised and retained the dual test, to be to mitigate in some degree the harshness of the common law of provocation as developed in recent decisions of the House of Lords. Second, he stated (at page 716F) that the public policy underlying the adoption of the "reasonable man" test in the common law doctrine of provocation was "to reduce the incidence of fatal violence by preventing a person relying upon his own exceptional pugnacity or excitability as an excuse for loss of self-control". Nevertheless the test now fell to be applied in the context of a law of provocation that was "significantly different from what it was before the Act was passed". He continued (at pages 716H-717B):- " ... for the purposes of the law of provocation the 'reasonable man' has never been confined to the adult male. It means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today. A crucial factor in the defence of provocation from earliest times has been the relationship between the gravity of [the] provocation and the way in which the accused retaliated, both being judged by the social standards of the day ... But now that the law h34 been changed so as to permit of words being treated as provocation even though unaccompanied by any other acts, the gravity of [the] verbal provocation may well depend upon the particular characteristics or circumstances of the person to whom a taunt or insult is addressed. To taunt a person because of his race, his physical infirmities or some shameful incident in his past may well be considered by the jury to be more offensive to the person addressed, however equable his temperament, if the facts on which the taunt is founded are true than it would be if they were not. It would stultify much of the mitigation of the previous harshness of the common law in ruling out verbal provocation as capable of reducing murder to manslaughter if the jury could not take into consideration all those factors which in their opinion would affect the gravity of taunts or insults when applied to the person [to] whom they are addressed." This reasoning led to the conclusion that the decision of the House of Lords in Bedder v. D.P.P. [1954] 1 W.L.R. 1119 (in which the House had rejected as irrelevant the impotence of the defendant who had been taunted with that very failing) was inconsistent with the Act and so was no longer good law. Next Lord Diplock concluded (at page 717H) that age may be taken into account when "determining what is the degree of self-control to be expected of the ordinary person with whom the accused's conduct is to be compared". Finally he epitomised his understanding of the law in a proposed direction to juries along the following lines (see pages 718E-F):- "The judge should state what the question is using the very terms of the section. He should then explain to [the jury] that the reasonable man referred to in the question is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but also whether he would react to the provocation as the accused did." As already recorded, Lord Fraser and Lord Scarman agreed with Lord Diplock. Lord Morris of Borth-y-Gest and Lord Simon of Glaisdale delivered separate judgments; but, as is evidenced by their agreement with Lord Diplock's proposed direction to juries, they too agreed with him in all essential respects. In particular Lord Simon stated (at page 727D) that "the standard of self-control which the law requires before provocation is held to reduce murder to manslaughter is still that of the reasonable person", and (at page 726F) that the reference in section 3 to a "reasonable man" means "a man of ordinary self-control". Their Lordships have taken the exceptional course of quoting a substantial part of Lord Diplock's judgment to emphasise that, on the basis that a "reasonable man" in the section means a "person having the power of self-control to be expected of an ordinary person", everything that Lord Diplock said was entirely consistent with the words of the section. In particular, to take into account the gravity of taunts or insults when applied to the person to whom they are addressed is consistent with the hypothetical person having such power of self-control, as is the fact that the sex and age of the defendant may be taken into account, so that the hypothetical person is treated as having the power of self-control to be expected, where appropriate, of an ordinary man or woman or an ordinary young person. The same view was expressed in the unanimous judgment of the High Court of Australia in Stingel v. R. (1990) 171 C.L.R. 312, with reference to age in the sense of immaturity, when it was said (at page 652C) that "the approach may be justified on grounds other than compassion, since the process of development from childhood to maturity is something which, being common to us all, is an aspect of ordinariness". But it is an entirely different question whether the mental infirmity of the defendant which impairs his power of self-control should be taken into account; and indeed it is difficult to see how it can be consistent with a person having the power of self-control of an ordinary person. It is of some interest to refer at this stage to Professor A.]. Ashworth's article on the Doctrine of Provocation in [1976] C.L.J. 292, to which their Lordships wish to express their indebtedness. In his article Professor Ashworth observed of the common law (at page 299) that "the law's paramount concern is to ascertain whether the accused showed a reasonable amount of self-restraint". He went on to observe that provocation can rarely be described as "grave" per se; in general, this can only be so in relation to persons of a particular class. From this he concluded (at page 300) that:- "The proper distinction '" is that individual peculiarities which bear on the gravity of the provocation should be taken into account, whereas individual peculiarities bearing on the accused's level of self-control should not." This conclusion of course also involved the rejection of the decision of the House of Lords in Bedder v. D.P.P. [1954] 1 W.L.R. 1119. Professor Ashworth's article was published in 1976, and Camplin was decided by the House of Lords only two years later. The similarity between the approach recommended by Professor Ashworth, and that adopted by the House of Lords in Camplin, is so great that it is difficult to believe that his article did not, at least indirectly, influence the reasoning and the conclusion in that case. Their Lordships wish to add that the recent decision of the House of Lords in R. v. Morhall [1995] 3 W.L.R. 330 is in no way inconsistent with the reasoning in Camplin. That case was concerned with the question whether a defendant who was taunted with his addiction to glue-sniffing, or solvent abuse, was precluded from saying that that characteristic could be taken into account when considering the objective test, because such a characteristic was inconsistent with the concept of the reasonable man. The House of Lords rejected that approach, holding that a characteristic such as this should not be excluded merely because it was discreditable. In so holding, the House invoked Lord Diplock's statement that the "reasonable man" in the section should be understood to be a person with the ordinary person 's power of self-control, but in other respects sharing such of the defendant's characteristics as the jury might think would affect the gravity of the provocation to him. However it was only two years after the decision of the House of Lords in Camplin when, in R. v. Newell (1980) 71 Cr.App.R. 331, the English Court of Appeal took the step of looking for sale guidance, on the interpretation placed by Camplin on section 3 of the English Homicide Act 1957, to a prolonged obiter dictum of North J. when delivering the judgment of the New Zealand Court of Appeal in R. v. McGregor [1962] N.Z.L.R. 1069, on the interpretation of section 169 of the New Zealand Crimes Act 1961, which contained a new statutory definition of provocation in the crime of murder in that country. The most relevant part of the section was section 169(2), which provided that:- "(2) Anything done or said may be provocation if -(a) in the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control; and(b) it did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide." The New Zealand Act had been mentioned briefly in argument in Camplin, when Lord Scarman (at page 710A) suggested to counsel for the Crown that section 169(2)(a) of the Act might be the same as section 3 of the Homicide Act 1957. This suggestion was rejected by counsel on the basis that the wording of the two statutes was different. In the result, though it is legitimate to infer that the New Zealand Act exercised some influence on the judgment of Lord Diplock in so far as it referred to "the power of self-control of an ordinary person", neither the Act nor McGregor received any mention in the judgment of Lord Diplock (with which both Lord Fraser and Lord Scarman agreed), or indeed in the judgment of Lord Morris. Only Lord Simon (at page 727C) expressed the opinion that English law was "substantially the same" as section 169(2) of the New Zealand Act as explained in McGregor. This imprecise statement cannot, in their Lordships' opinion, have been intended to suggest that precise guidance as to the interpretation of the English statute could be derived from McGregor. Nevertheless it appears to have provided the genesis of the judgment of the English Court of Appeal in Newell. In that case, the Court of Appeal were concerned to ascertain the meaning of the word "characteristics" as used in Lord Diplock's judgment in Camplin. For that purpose, they turned immediately to McGregor, which had been referred to by Lord Simon in Camplin. The Court then quoted a long passage from the obiter dictum of North J. (though omitting an early part of it which shows North J. relying on the particular words of the New Zealand Act); and then, without embarking on any analysis, the Court of Appeal stated (at page 340) that the part quoted "seems to us to be impeccable" and "represents also, we think, the law of this country as well as the law of New Zealand". From it they drew the conclusion that a "characteristic" for the purposes of provocation should be a more than transitory phenomenon - a conclusion upon which some doubt was later to be cast by the House of Lords in Morhall [1995] 3 W.L.R. 330, 337. The actual decision in Newell, which was to the effect that the judge was right to direct the jury to leave out of account the drunkenness of the defendant when considering the objective test in provocation, was doubtless correct, possibly on the basis that as a matter of policy intoxication does not of itself excuse a man from committing a criminal offence (see Morhall at page 337G, per Lord Goff of Chieveley). But in the respectful opinion of their Lordships, it must be unwise to impose uncritically upon an English statute an interpretation placed upon a statute from another jurisdiction, which is not expressed in the same words. Of course, there is a strong affinity between English and New Zealand law on this subject, reflecting their common origin; and anything which has fallen from North J. is regarded with great respect in this country, as it is in New Zealand. But their Lordships feel compelled to say that the wholesale adoption, without analysis, of a substantial part of this obiter dictum, which covers a wide range of points on a notoriously difficult subject with particular reference to the New Zealand statute, is not a satisfactory approach to the interpretation of the objective test in provocation as recognised in the English statute. Each point must, in Hong Kong as in England, fall to be considered by reference to the words of the statute, their historical derivation from the common law, and the legislative setting (where relevant) at the time of enactment. The passage from North J.'s judgment which is of most relevance for present purposes is concerned with his treatment of what he called "purely mental peculiarities" of the defendant. He considered that these might qualify as "characteristics" to be taken into account for the purposes of the objective test, but that to do so "there must be something more, such as provocative words or acts directed to a particular phobia from which the offender suffers" (see page 1082, lines 29-31). For otherwise the objective test would be denied any real operation, and a substantial step would be taken towards the admission of a defence of diminished responsibility in New Zealand without the statutory authority to sanction it, the defence not being recognised in New Zealand law. Their Lordships observe in passing that this approach to mental infirmity of the defendant is inconsistent with the submission advanced to them on behalf of the appellant in the present case. The danger inherent in adopting a test laid down with reference to a different statute in another jurisdiction can be seen in the fate which subsequently befell North J.'s dictum in New Zealand. First, it was subjected to trenchant criticism in Adams on Criminal Law, 2nd ed., paras. 1264-9. Next it was found to create difficulties when applied in practice, which finally resulted in its being disapproved by the New Zealand Court of Appeal in R. v. McCarthy [1992] 2 N.Z.L.R. 550. In his judgment in that case Sir Robin Cooke P. listed five cases in which, among others, difficulty had been caused. A particular problem appears to have arisen from North J.'s requirement that "mental peculiarities" cannot be taken into account unless, in particular, the provocation was directed towards them. Judging from R. v. Taaka [1982] 1 N.Z.L.R. 198 and R. v. Leilua [1986] N.Z. Recent Law 118, to which their Lordships were referred in the course of argument, it appears that there had developed a tendency for New Zealand courts to take into account the mental infirmity of the defendant as such for the purpose of the objective test. There is every reason to believe that the spur for this development lay in the absence of any defence of diminished responsibility in the law of murder in New Zealand. At all events in McCarthy Sir Robin Cooke P. considered that North J.'s "added observations" may have "unduly restricted the ambit of the provocation" (see McCarthy at page 558, line 7). There followed a significant passage in Sir Robin's judgment:- "The added observations appear to have been influenced by the view that diminished responsibility had not been accepted by the New Zealand Parliament; yet, within a limited field, this may be seen as the inevitable and deliberate effect of the statutory changes embodied in s. 169 of the Crimes Act 1961." In other words, Sir Robin now considers that section 169 may have had the legislative purpose of introducing diminished responsibility into the limited field of provocation. Their Lordships comment that no such purpose can have been intended by the legislature in section 3 of the Homicide Act 1957 or in section 4 of the Hong Kong Ordinance, when by a neighbouring section in the same statute the defence of diminished responsibility had been introduced by the legislature as a matter of general application in the law of murder. This is a point to which their Lordships will return. It must however follow from Sir Robin Cooke's judgment in McCarthy that decisions of the New Zealand Court of Appeal in cases such as Taaka and Leilua, in which the mental infirmity of the defendant was as such taken into account for the purposes of the objective test in provocation, cannot provide any safe guidance on the construction of the English or Hong Kong legislation on the subject. The history of the New Zealand cases on this subject reveals that the approach adopted by the Court of Appeal in Newell has exercised an unhappy influence upon the reasoning in subsequent decisions of the Court of Appeal in which reliance was placed on Newell. This applies in particular to R. v. Ahluwalia [1992] 4 All ER 889 , in which Newell was relied on, as were Taaka and Leilua, and led the Court of Appeal to suggest that certain characteristics of the defendant relating to his or her mental state or personality may as such be taken into account by the jury for the purposes of the objective test (see page 890b-d). It is unfortunate that the attention of the Court of Appeal was not drawn to McCarthy, decided five months earlier, in which the obiter dictum of North J. in McGregor had been rejected and Sir Robin Cooke P. had expressed the view that mental characteristics of the defendant could be taken into account because of the deliberate intention of the New Zealand Parliament to achieve a partial recognition of the defence of diminished responsibility. Their Lordships feel confident that, if Sir Robin Cooke's judgment in McCarthy had been drawn to the Court's attention, they would have appreciated that the New Zealand case law on the interpretation of section 169 of the New Zealand statute no longer provided safe guidance on the interpretation of the English statute, for which it was necessary to return to the authoritative statement in Lord Diplock's judgment in Camplin. The same comment may be made of judgments of the Court of Appeal in other cases, such as R. v. Dryden [1995] 4 All E.R. 987 and in R. v. Humphreys [1995] 4 All E.R. 1008. Their Lordships wish to add that they do not find it possible to segregate certain psychological illnesses or disorders as being "in no way repugnant to or wholly inconsistent with the concept of the reasonable person" (see Humphreys at page 1022 E-G) and so attributable to the reasonable person for the purposes of the objective test in provocation, notwithstanding that the effect of such an illness or disorder is to deprive the person so afflicted of the ordinary person's power of self-control. In these circumstances their Lordships return to the interpretation placed on the English statute in Camplin for guidance in answering the question posed for their consideration in the present case. Their conclusion is that, on the principles there stated, there is no basis upon which mental infirmity on the part of the defendant which has the effect of reducing his powers of self-control below that to be expected of an ordinary person can, as such, be attributed to the ordinary person for the purposes of the objective test in provocation. First of all, for mental infirmity of the defendant so to be taken into account would be inconsistent with the statute as interpreted in Camplin, in which it was held that the reasonable man referred to in the statute means a person having the power of self-control to be expected of an ordinary person. But their Lordships wish to state that, in so holding, they are not simply treating the matter as one of literal application of the principle stated in Camplin. That principle is, in their respectful opinion, well-founded in law. It is widely accepted that section 3 of the Act of 1957 is not a codifying Act, but an amending Act which expressly recognised and retained the objective test as established in the common law subject to the amendments provided for in the section. Having regard to the principles of common law then applicable, the intention must, as Professor Ashworth has convincingly demonstrated in his article in [1976] C.L.J. 292 at pages 299-300, have been that individual peculiarities of the defendant affecting his power of self-control should not, as such, be taken into account for the purposes of the objective test. Moreover an indication of the problems involved in so taking mental infirmity into account is provided by R. v. Raven, briefly reported in [1982] Crim.L.R. 51, which was concerned with the trial for murder of a man whose physical age was 22 years, but whose mental age was only 9 years. The Recorder of London directed the jury that, in considering the objective test in provocation, they should attribute to the reasonable man the retarded development and mental age of the defendant. It is scarcely surprising that Professor Birch, in her commentary on the report, should have expressed the opinion that "putting oneself in the position of a reasonable 22 year old with a mental age of nine is a tremendously difficult feat". Even greater problems would arise if the appellant's argument was to be accepted in the present case, in which event the jury should have been directed to attribute to the reasonable man, i.e. a man having the ordinary man's power of self-control, the appellant's brain damage with the consequent impairment of that power. Their Lordships' conclusion on the effect of section 3 of the English Act is moreover consistent with that formed by the High Court of Australia in Stingel with reference to section 160(2) of the Tasmanian Criminal Code, which provided that:- "Any wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person of the power of self-control and which, in fact, deprives the offender of the power of self-control, is provocation, if the offender acts upon it on the sudden, and before there has been time for his passion to cool." The Court said (at page 327):- "The function of the ordinary person of s.160 is the same as that of the ordinary person of the common law of provocation. It is to provide an objective and uniform standard of the minimum powers of self-control which must be observed before one enters the area in which provocation can reduce what would otherwise be murder to manslaughter. While personal characteristics or attributes of the particular accused may be taken into account for the purpose of understanding the implications and assessing the gravity of the wrongful act or insult, the ultimate question posed by the threshold objective test of s.160(2) relates to the possible effect of the wrongful act or insult, so understood and assessed upon the power of self-control of a truly hypothetical 'ordinary person'. Subject to a qualification in relation to age (see below), the extent of the power of self-control of that hypothetical ordinary person is unaffected by the personal characteristics or attributes of the particular accused." Their Lordships also refer to the similar statement of the law by Brennan, Deane, Dawson and Gaudron J.J. in Masciantonio v. R. (1995) 69 A.L.J.R. 598 at pages 602-3, with reference to the common law of provocation applicable in the State of Victoria. It is of course consistent with Lord Diplock's analysis in Camplin, and indeed with the decision of the House of Lords in Morhall, that mental infirmity of the defendant, if itself the subject of taunts by the deceased, may be taken into account as going to the gravity of the provocation as applied to the defendant. Such a conclusion was also consistent with the opinion expressed obiter by North J. in McGregor. But this is a far cry from the appellant's submission that the mental infirmity of the defendant impairing his power of self-control should as such be attributed to the reasonable man for the purposes of the objective test. Their Lordships have reached the foregoing conclusion as a matter of construction of the English Act (and therefore of the Hong Kong Ordinance). But they are, like the Hong Kong Court of Appeal, fortified in that view by reference to the defence of diminished responsibility introduced into English law by section 2 of the same Act, and into Hong Kong law by section 3 of the same Ordinance. To accept the appellant's submission would, in their Lordships' opinion, be to incorporate the concept of diminished responsibility indirectly into the law of provocation. Such a conclusion is most unlikely to have been intended by the legislature which, in a neighbouring section in the same statute, introduced diminished responsibility as a defence of general application in the law of murder, and moreover did so subject to the imposition of a special rule relating to the burden of proof, viz. that the burden of establishing diminished responsibility should rest upon the defendant, though it should be the civil burden. If diminished responsibility was held to form part of the law of provocation, the extraordinary result would follow that a defendant who failed to establish diminished responsibility on the burden of proof placed upon him by section 2 of the English Act might nevertheless be able to succeed on the defence of provocation (as recognised in section 3) on the basis that, on precisely the same evidence, the prosecution had failed to negative, on the criminal burden, that he was suffering from a mental infirmity affecting his self-control which must be attributed to the reasonable man for the purposes of the objective test. This was precisely the result for which the appellant was contending before their Lordships. They do not consider that this could have been the intention of the legislature. But their Lordships wish to add that the recognition by the legislature of the defence of diminished responsibility gives a defendant suffering from abnormality of mind the opportunity to establish a defence upon which a very wide interpretation has been placed by the courts and which, if proved, has like provocation the effect of reducing to manslaughter what would otherwise be murder. For the courts, in interpreting section 2 of the Act, have given to the words "abnormality of mind" a very broad meaning, wide enough to embrace not only cases of "irresistible impulse", but also those cases in which the difficulty of the defendant in controlling (or rather failing to control) his behaviour was "substantially greater than would be experienced in like circumstances by an ordinary man, not suffering from mental abnormality": see Smith and Hogan, Criminal Law, 7th ed., p. 2132, referring in particular to R. v. Byrne [1960] 2 Q.B. 396, 403, per Lord Parker C.J. It follows that the spur which has occasioned the developments in New Zealand law culminating in the judgment of Sir Robin Cooke P. in McCarthy, to which their Lordships have referred, does not exist, at least to the same extent, in the law of England or the law of Hong Kong. Their Lordships wish to add, as a footnote, that it may be open to a defendant to establish provocation in circumstances in which the act of the deceased, though relatively unprovocative if taken in isolation, was the last of a series of acts which finally provoked the loss of self-control by the defendant and so precipitated his extreme reaction which led to the death of the deceased. That such a series of events might cumulatively constitute provocation was the opinion expressed by Gibbs}. (as he then was) in Moffa v. R. (1977) 138 C.L.R. 601, 616 cited with approval by the High Court of Australia in Stingel at page 326. Whether such a principle could be successfully invoked in cases such as, for example, the "battered wife syndrome" is a matter upon which their Lordships can in the present case express no opinion, having heard no argument upon it, but must await a case in which the point arises for decision. In conclusion their Lordships observe, though in no spirit of criticism, that they were not provided with any theoretical analysis of the concept of provocation, or of the various forms which it might take in the criminal law; and since the present case is ultimately concerned with a question of statutory construction, they have not thought it necessary themselves to indulge in any such exercise. Even so, it is plain that there must be a number of models from which a legislator might choose. He might, for example, adopt a purely objective approach, though doubtless this could take various forms. Such a model appears to have been adopted in those States of Australia in which the defence of diminished responsibility is not available. He might adopt an objective approach, but seek to mitigate its rigours by recognising the concept of diminished responsibility within the limited field of provocation, as Sir Robin Cooke appears to have understood the New Zealand Parliament to have intended. Then again he might adopt an objective approach, but combine the defence of provocation so formulated with a defence of diminished responsibility in the crime of murder. This appears to have been done in England and Hong Kong, and in those States of Australia in which the defence of diminished responsibility is recognised (which their Lordships understand to be New South Wales, Queensland and the Australian Capital Territory). Alternatively he might adopt a subjective approach, which their Lordships understand some jurists find attractive. This too could no doubt take various forms; but it would probably have to be so formulated, or to be subject to exceptions, so as to exclude socially undesirable cases such as intoxication or sheer bad temper. Again he might abolish the mandatory sentence for murder (a course of action which is understood to be widely supported in the United Kingdom), or even abolish the crimes of murder and manslaughter, replacing them with a crime of culpable homicide, in which event provocation could, where appropriate, be taken into account in mitigation of sentence. It is not however for their Lordships to decide what model would be most appropriate as a matter of justice. They have to apply the law; and since the intervention of the legislature, it has no longer been open to them to develop the law inconsistently with the statute, even if they thought it desirable to do so. If the statute is now perceived to lead to unacceptable results, steps should be taken as soon as possible to persuade the Hong Kong legislature, and the United Kingdom Parliament, to amend it. But what appears to have been happening in the English courts in recent years is an attempt, inspired by certain New Zealand cases, to transform the objective approach, recognised by the United Kingdom Parliament in 1957, into a subjective approach, though doubtless having the effect of excluding cases of intoxication and bad temper. This judicial modification of the statutory test has inevitably led to strains and stresses, notably in doubts about the scope of provocation in English law, but also in having to impose on juries an almost impossible task of having to adopt a subjective approach through the medium of the objective "reasonable man" test recognised in the statute. Their Lordships are driven to say that this is not a satisfactory situation, and in their opinion the solution is to be found in returning to the objective approach recognised in the statute as interpreted by Lord Diplock in Camplin. For all these reasons their Lordships, in agreement with the Court of Appeal, are satisfied that there was no misdirection by the judge on provocation. There is however one point in the reasoning of the Court of Appeal to which they wish to refer, viz. that it is necessary for the provocation to have been directed at the relevant characteristic of the defendant. Their Lordships accept that, in the great majority of cases in which a characteristic of the defendant is relevant to the gravity of the provocation to him, the provocation will in fact have been directed at that characteristic, as where it is the subject of taunts by the deceased. But they wish to observe that this need not always be so, for there may be cases in which, for example, previous events mislead the defendant into believing that an innocent remark by the deceased was so directed when in fact it was not. For this reason, the requirement may be misleading. Their Lordships will humbly advise Her Majesty that the appeal ought to be dismissed. Dissenting judgment delivered by Lord Steyn I regret I am unable to agree that, on the central point in this case, the law of provocation of England and Hong Kong is as stated in the judgment of the majority. The difference of opinion. It will be convenient to explain at the outset my understanding of the difference of opinion in this case. I agree with the conclusion of the majority that the Court of Appeal of Hong Kong erred in holding that it is a necessary pre-condition to the availability of the defence of provocation that the provocation must have been directed at the personal characteristic on which the defendant seeks to rely. There is no such artificial and restrictive rule. In view of the unanimity on this point I say no more about. The nature of the difference of opinion can be illustrated by a few simple examples. Let me imagine the case where a woman shortly after giving birth to a child stabs and kills her husband during an argument. She wishes to put to the jury as part of her defence of provocation that she was suffering from postnatal depression which rendered her more prone to loss of self-control. A second example is the case where there is evidence that a woman, as a result of ill treatment by her husband, suffers from "battered woman syndrome". When taunted by her lover she stabs and kills him. She wants to rely on evidence of battered woman syndrome as part of her defence of provocation. The third example is a woman who suffers from a personality order which makes her more prone to loss of self-control. During a quarrel she stabs and kills her husband. She wants to rely on the personality order as part of her defence of provocation. A common feature of the three examples is that in none of them can the woman in any way be said to be at fault in inducing her condition. None of these cases can be explained away on a broad view of the provocative conduct of the husband or lover, i.e. the "last straw" argument. In all three cases the merits or demerits of the woman's argument cannot be determined on a priori grounds: in the context of provocation it is a matter of fact for exploration in evidence. But in all three cases the particular characteristic of the defendant is potentially relevant only inasmuch as it affects the degree of self-control of the defendant. It is trite law that in all three cases relevant evidence of the woman's condition may be placed before the jury. To the extent that the particular condition falls beyond the experience of ordinary men and women such evidence may include opinion evidence by experts. See R.D. Mackay and Andrew M. Colman, Equivocal Rulings on Expert Psychological and Psychiatric Evidence: Turning a Muddle into Nonsense [1996] Cr.L.R. 88. Such evidence by witnesses of fact or experts may be relevant and admissible on the subjective issue whether the woman had in fact lost her self-control. Moreover, the trial judge would as a matter of fairness be bound to direct the jury that in regard to the subjective enquiry they ought to take into account the evidence as to the woman's condition at the time of the killing. But in my view the logic of the position of the majority is that in all three cases, whatever the strength of the evidence, the judge is as a matter of settled legal principle entitled, and indeed obliged, to direct the jury to ignore the evidence of postnatal depression, battered woman syndrome, and personality disorder when they consider the objective issue. On this basis a trial judge would have to direct a jury along the following lines:
"Members of the jury, you have heard evidence regarding the defendant's postnatal depression. When you deal with the first and subjective enquiry you must carefully consider the effect of that evidence. But when you come to consider the second and objective enquiry, please put that evidence out of your mind. It is irrelevant"
. In my view a jury would be rather puzzled by such artificially compartmentalized directions. Faced with such examples counsel for the prosecution expressly and freely acknowledged the unfairness of the potential results. His answer was: "that is the law". The view of the law contended for by the prosecution will inevitably lead to injustice. It will result in convictions of murder and mandatory life sentences in cases where that is wholly inappropriate, In my view our law does not compel such crude and unfair results, The principled solution is, however, not to be found in legal history or in New Zealand and Australian statutes and case law, It is to be found in the contextual scene of the reforming measure contained in section 3 of the Homicide Act 1957, I shall try to explain, The genesis of section 3 of the Homicide Act 1957, By the end of the forties there was considerable dissatisfaction with the law of homicide, and notably the death sentence for murder. The Royal Commission on Capital Punishment, 1949-1953, was appointed, The Report of the Royal Commission was presented to Parliament in September 1953: Cmd 8932, For present purposes it is the Royal Commission's examination of the law of provocation and recommendations regarding that branch of the law, which are of importance, The Royal Commission first sketched the current law of provocation, They observed (at paragraph 134):- "Two conflicting tendencies may be traced in the evolution of the law of England with regard to provocation, On the one hand the courts have steadily limited the scope of provocation recognised as adequate to reduce murder to manslaughter, and have subjected it to increasingly strict and narrow tests, On the other hand the greater severity of the law has been tempered by leniency in its application. Judges have instructed juries in terms more favourable than the letter of the law would allow." The Royal Commission explained (at paragraph 135):- "But the advance of society has also led to an increased concern for the individual prisoner and to a desire, so far as possible, to take account of the characteristics and mental reactions of the individual in applying the law. This has shown itself in the readiness of the courts and of the Executive to give weight to provocation insufficient in law to extenuate murder." The Royal Commission then examined arguments for and against the retention of the objective or reasonable man test. It recommended that the objective test be retained. But it is important to note on what basis the recommendation was made. The Royal Commission concluded (at paragraph 145):· "We have indeed no doubt that if the criterion of the 'reasonable man' was strictly applied by the courts and the sentence of death was carried out in cases where it was so applied, it would be too harsh in its operation, In practice however, the courts not infrequently give weight to factors personal to the prisoner in considering a plea of provocation , and where there is a conviction of murder such factors are taken into account by the Home Secretary and may often lead to commutation of the sentence. The application of this test does not therefore lead to any eventual miscarriage of justice . At the same time, as we have seen, there are serious objections of principle to its abrogation. In these circumstances we do not feel justified in recommending any change in the existing law." (My emphasis) The Report of the Royal Commission was the genesis of section 3 of the Homicide Act 1957. Indeed section 3 was intended to implement the recommendations on provocation of the Royal Commission. Section 3 reads as follows:- "Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man." (My emphasis) Parliament had before it the Royal Commission's view that if the objective test was "strictly applied by the courts" the law would be "too harsh in its operation". But Parliament had the reassurance of the Royal Commission "that the courts not infrequently give weight to factors personal to the prisoner" and that "the application of this test does not therefore lead to any eventual miscarriage of justice". In other words Parliament was quite reasonably entitled to enact section 3 on the assumption that the courts in applying the reasonable man test would seek to avoid the injustices which would follow from a rigid and doctrinaire application of the test. It is a safe assumption that Parliament would not have wished to entrench potential injustices which had already been exposed. For example, Parliament could not possibly have intended that an immature youth should be judged by the standards of self-control of a reasonable man. Parliament adopted the not unusual course of not trying to solve an intractable problem but leaving it to the courts in the application of the Act to work out sensible and just solutions. R. v. Camplin, The expectation that, in applying the reasonable man test in section 3 of the Homicide Act 1957, the judges would work Out sensible and just solutions was falsified at first instance in R. v. Camplin [1978] AC 705 , A boy, aged 15, had killed a man. He alleged that the man had buggered him. Boreham J. directed the jury that they must consider whether the provocation relied on had been sufficient to make a reasonable man, not a reasonable boy of the accused's age, in like circumstances act as the accused acted. A strong Court of Appeal presided over by Bridge L.J. (Later Lord Bridge of Harwich) set aside the conviction on the ground of misdirection. On appeal the Crown argued for a literal interpretation of section 3: counsel said that "if there is to be a standard it must be one which is universally applicable and in all ages". The Crown's argument was a classic example of begriffsjurisprudenz or conceptualistic reasoning. The House of Lords would have none of it. Lord Diplock observed that "to require old heads upon young shoulders is inconsistent with the law's compassion to the human infirmity": at pages 717H-718A. I would add three observations. First, the relevance of youthfulness was obviously not dependent upon the provocation being directed to it. Secondly, the only relevance of youthfulness as a condition attributed to the reasonable man is the lesser degree of self control usually associated with it. Thirdly, counsel for the Crown challengingly put to their Lordships these rhetorical questions: "If there were a different standard for a 15 year old boy, why not for an immature 21 year old person? Why should he not have the benefit?" Yet there is nothing in the speeches to indicate that only youthfulness could qualify as "human infirmity" under the objective requirement. If their Lordships had in mind such a rigid and artificial numerus clausus it would have been quite easy to say so. They did not. Indeed Lord Simon of Glaisdale expressly posed the question:· "If youth is to be considered (and, presumably, advanced years), what about immaturity in a person of full years or premature senility?" He then observed (at page 725B-D):- "The original reasons in this branch of the law were largely reasons of the heart and of common sense, not the reasons of pure juristic logic. The potentiality of provocation to reduce murder to manslaughter was, as Tindal C.J. said in Rex v. Hayward, 6 C. & P. 157, 159, 'in compassion to human infirmity', But justice and common sense then demanded some limitation: it would be unjust that the drunk man Or one exceptionally pugnacious or bad-tempered or over-sensitive should be able to claim that these matters rendered him peculiarly susceptible to the provocation offered, where the sober and even-tempered man would hang for his homicide. Hence, I think, the development of the concept of the reaction of a reasonable man to the provocation offered - even though it may have originally come into this branch of the law by way of testing the credibility of the claim of the accused (who could not at that time himself give evidence) that he had been so deprived of his self-control as to be incapable of forming the relevant intent. But it is one thing to invoke the reasonable man for the standard of self-control which the law requires: it is quite another to substitute some hypothetical being from whom all mental and physical attributes (except perhaps sex) have been abstracted." (Emphasis added) The italicised final sentence is inconsistent with any intention to treat youthful immaturity as the only mental characteristic relevant to the objective requirement. Indeed, later in his judgment Lord Simon made clear that "the entire factual situation, which includes the characteristics of the accused, must be considered": at page 727D. In context that did not exclude mental abnormality. And on this point no relevant difference of opinion was exposed by the speeches in Camplin. Indeed all their Lordships agreed on the terms of the model direction contained in Lord Diplock's judgment. For my part the actual decision in Camplin is perfectly consistent with a sensible interpretation of section 3 in its contextual scene. The subsequent English cases. The next significant step in the evolution of this branch of the law came three years after Camplin. In R. v. Raven [1982] Crim.L.R. 51 the Recorder of London, following the rationale of Camplin as he understood it, ruled in a case of alleged provocation that the fact that a defendant aged 22 years had a mental age of about 9 years was a relevant factor in the objective enquiry. It was a ruling by a judge with great experience of this branch of the law. That ruling was reported some thirteen years ago. It has not been suggested in any subsequent decision or academic writing that Raven was wrongly decided. Indeed learned authors consistently treated it as correctly decided: Smith and Hogan, Criminal Law, 7th edn, 361. In a contemporary comment Professor Diane Birch, while clearly taking the view that the ruling of the judge, under existing law, was sensible and correct, commented that "putting oneself in the position of a reasonable 22 year old with a mental age of 9 is a tremendously difficult feat"; Professor Diane Birch, 1982 Crim.LR. 451. There is force in this lament about the state of the law but such practical difficulties are inherent in employing the device of the reasonable man. It is not significantly more difficult than asking jurors to imagine that they are one-legged, impotent or of a different racial or cultural background. In any event, the reason for the decision in Camplin was the lesser degree of self control of a youth. There is good sense in the maxim that the rule ought to follow where reason leads, and where reason stops there ought to stop the rule. And qualitatively there is no relevant distinction (as counsel for the prosecution put to their Lordships in Camplin) between youthfulness and immaturity due to impaired intellectual development. For these reasons I reject the invitation of the prosecution to hold that Raven was wrongly decided. But there have been further developments. In R. v. Ahluwalia [1992] 4 All ER 889 a woman killed her husband. The deceased had allegedly abused and beaten the defendant over many years. The jury rejected her defence of provocation and convicted her of murder. On appeal counsel for the appellant argued that the judge had misdirected the jury by not asking them to consider in relation to the objective enquiry that her ill-treatment had affected her personality so as to produce a state of "learnt helplessness", a phrase used by experts who had identified this condition: (at page 897 E). That condition was also described as "battered woman syndrome". Delivering the judgment of the court Lord Taylor C.J. observed (at page 898 C-F):- "In the present case, there was no medical or other evidence before the judge and jury, and none even from the appellant, to suggest that she suffered from a post-traumatic stress disorder, or 'battered women syndrome' or any other specific condition which could amount to a 'characteristic' as defined in R. v. McGregor [1962] NZLR 1069. True, there was much evidence that the appellant suffered grievous ill-treatment; but nothing to suggest that the effect of it was to make her 'a different person from the ordinary run of [women]', or to show that she was 'marked off or distinguished from the ordinary [woman] of the community' . Had the evidence which has now been put before this court been adduced before the trial judge, different considerations may have applied. As it is, we consider that there was no basis for the judge to refer to a characteristic consisting of an altered personality or mental state in this appellant. Nor do we consider that, on the evidence before them, the jury would have been justified in finding such a characteristic. " The court apparently considered that the alleged condition of the appellant, if supported by medical evidence, is relevant to the objective enquiry. Counsel for the prosecution on the present appeal argued that the Court of Appeal took the wrong view of the law. Since Ahluwalia there have been four decisions in the Court of Appeal which need to be considered. Three of these decisions pre-dated the oral hearing in the present case and the fourth was decided after the oral hearing. Despite the fact the Board has not had the benefit of counsel's observations on those cases it is impossible to do justice to the issue in this case without referring to them. The first case is R. v. Dryden, [1995] 4 All E.R. 987. In that case it was apparently common ground that the defendant, who shot and killed a planning officer who visited his property, was suffering from an abnormality of mind and clinical depression. He raised the defence of diminished responsibility and provocation. The jury convicted him of murder. He appealed on the ground that the judge had misdirected the jury. In dealing with the judge's directions on provocation, and in particular on the reasonable man test, the Lord Taylor C.J. said (at page 998 D-E):- "We have come to the conclusion that this was a characteristic, the obsessiveness on the part of the appellant and his eccentric character, which ought to have been left to the jury for their consideration. We consider that they were features of his character or personality which fell into the category of mental characteristics and which ought to have been specifically left to the jury." But the Court of Appeal concluded that there was no miscarriage of justice and dismissed the appeal. The significance of this case is that what may have been an obiter dictum in Ahluwalia certainly ripened into ratio decidendi in Dryden. In R. v. Baille, decided on 28th July 1994, the Court of Appeal described Ahluwalia as authoritatively establishing the effect of section 3 of the Homicide Act 1957. In R. v. Humphreys [1995] 4 All E.R. 1008 the Court of Appeal had to consider whether immaturity may be a relevant characteristic of a defendant relying on provocation. The Crown submitted that Dryden had been decided per incuriam. In Humphreys the court rejected this submission. The court then observed that the appellant was (at page 1022L):- "unduly young for her comparatively young age and (this) brings the case, on this ground, into close comparison with Camplin." This part of the reasoning of the court is an echo of the ground of decision in Raven. The last of the four cases is R. v. Thornton, The Times, 13th December 1995. A wife had stabbed her husband. He died. She was charged with murder. At the trial the defendant relied only on diminished responsibility. Given that there was evidence that the husband had persistently ill-treated the defendant, the judge left provocation as an issue the jury. The jury convicted the defendant of murder. Her appeal to the Court of Appeal was dismissed. Further medical evidence as to the mental condition of the defendant was placed before the Secretary of State. He referred the matter back to the Court of Appeal. The new medical evidence tended to prove that the appellant suffered from an obsessive personality disorder and "battered woman syndrome". The Lord Chief Justice held that the medical evidence as to the personality disorder of the defendant and the evidence of "battered woman syndrome" revealed potentially relevant characteristics of the appellant. He concluded:- " ... what characteristics of a defendant should be attributed by the jury to the notional reasonable person and how far the judge should go in assisting the jury to identify such characteristics, are issues which have been clarified in a number of decisions subsequent to this appellant's trial and indeed to her first appeal. The cases of Ahluwalia (supra), Humphreys (CA judgment 7 July 1995) and Morhall [1995] 3 WLR 330 make clear that mental as well as physical characteristics should be taken into account. Moreover, there is authority, especially from the judgment of the House of Lords in Morhall at page 338F that a Judge should give the jury directions as to what, on the evidence, is capable of amounting to a relevant characteristic. We consider that if the trial Judge had had the assistance of those authorities and of the further evidence we have before us, he should and would have given the jury directions as to the two characteristics now relied upon. We conclude that the fresh evidence and the clarification of the law to which we have referred cast doubt upon the basis of the jury's verdict in this case. We cannot therefore be sure that the verdict is safe and satisfactory." In the result the Court of Appeal ordered a retrial. Diminished responsibility. I have not lost sight of the existence of the defence of diminished responsibility. Section 2(1) of the Homicide Act 1957, and section 3(1) of the Homicide Ordinance of Hong Kong provide:- "Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing." The burden of establishing this defence is on the defendant who raises it. It is an optional defence. Only if it is relied on by the defendant may the trial judge leave it to the jury. It is often a matter of tactical judgment whether a defendant, who suffers from an abnormality of mind, will be advised to rely on both defences or should simply rely on provocation where he shoulders no burden of proof. In any event, it is restricted to "an abnormality of mind" which "substantially impaired (the defendant's) mental responsibility for his acts". It does not cover the whole field of significant mental attributes which may affect provocation. It is no answer to the reasoning in Thornton. Taking stock of the arguments. If Raven was correctly decided, as I believe it was, it follows that the present appeal must succeed. Moreover, that view is supported by the decisions of the Court of Appeal, starting with Ahluwalia and culminating in Thornton. The judges involved were Lord Taylor C.J., Hirst L.J., Henry L.J. and eight Queen's Bench judges experienced in criminal law. They would not have overlooked the relevance of the defence of diminished responsibility. Nor did they principally rely on New Zealand cases. Those decisions in the Court of Appeal are a logical extension of the decisions in Camplin and Raven. But even more important than the promptings of legal logic is the dictates of justice. Justice underpinned these decisions. And nothing in Camplin or R. v. Morhall [1995] 3 W.L.R. 330 precluded this development. It is simply an extension of the ratio of Camplin and Morhall was concerned with a different problem altogether i.e. a characteristic supplying the sting of provocative conduct. The law remains that a defendant may not call in aid his own irascibility or pugnacity. The Royal Commission was confident that "minor abnormalities of character" must be ignored: paragraph 143. That does not mean that it was right to ask the jury to ignore the defendant's brain damage. Counsel for the prosecution argued that it may prove difficult to say where the line should be drawn. We ought not to shrink for this reason from recognising a rational and just development. The traditional common law answer is apposite: any difficult borderline cases will be considered if and when they occur. In the meantime nobody should underestimate the capacity of our law to move forward where necessary, putting an end to demonstrable unfairness exposed by experience. For these reasons I conclude that the trial judge misdirected the jury by failing to direct them that the evidence of the appellant's brain damage, and its impact on the appellant's response to provocation, depending on what the jury made of it, was relevant to the objective requirement of provocation. The effect of the misdirection. The prosecution invited the Board to apply the proviso. The fact that the appellant failed to discharge the burden resting on him of proving diminished responsibility does not demonstrate how the jury reasoned in respect of provocation. It was for the jury to decide whether the prosecution had disproved the defence of provocation to a satisfactory standard. And the misdirection on provocation deprived the appellant of his best card, viz. the relevance of brain damage tending to cause the appellant to over react to minor provocation. In these circumstances it is impossible to apply the proviso. Conclusion. I am accordingly of the opinion that the conviction of murder and resultant sentence ought to be quashed; that a verdict of manslaughter ought to be substituted; and that the matter ought to be remitted to the Court of Appeal to impose the appropriate sentence. There is before their Lordships an appeal by the appellant, Luc Thiet-thuan, from a judgment of the Court of Appeal of Hong Kong (Power V.-P., Macdougall V.-P. and Mortimer J.A.) dated 26th August 1993 dismissing the appellant's appeal against his conviction of murder before Ryan J. and a jury on 13th January 1992. The appellant, together with Cheung Hoi-man and Lo Siu-kuen (whom their Lordships will refer to as D2 and D3 respectively), were charged with the murder of Candy Leung Shuk-man on 16th February 1988, and with robbery from the deceased woman on the same occasion of a necklace, a gold ring and about HK$2,000. All three were convicted of the robbery, and were sentenced to imprisonment for 8 years, 7 years and 4 years respectively. The appellant was convicted of murder, and was sentenced to death. The other two defendants were convicted of manslaughter, and were each sentenced to 2 years imprisonment concurrent.[2]The body of the deceased was found on 22nd February 1988 in certain premises in Yuen Long in the New Territories. The autopsy revealed that she had suffered multiple stab and cut wounds. The doctor who conducted the autopsy was of the opinion that the cause of death was multiple stab wounds to the body, causing injury to the heart, lungs, liver and kidney. The cut wounds were consistent with defensive wounds suffered during a struggle. The condition of the face and eyes was consistent with asphyxiation.[3]The appellant was arrested in May 1990, over two years after the killing. He made a statement to the police to the following effect. He and D2 agreed to rob the deceased, with whom the appellant had previously had an intimate relationship. D3 provided money with which the appellant and D2 procured knives for the purpose of the robbery. Since the appellant feared that he would be recognised by the victim, D2 agreed that he would "fix her up", i.e. kill her; and that was what in fact occurred. The appellant and D2 then left with the proceeds of the robbery, part of which was given to D3 to dispose of. The appellant participated in a video reconstruction of the crime, which in essence confirmed the account given by him in his statement.[4]At his trial, however, the appellant gave an entirely different account of the crime, repudiating his earlier statement as having been procured by inducements from the police. His new account was to the effect that he went to the premises with D2 to collect money which was owed to him by the deceased. Knives were taken to defend themselves with in the event of trouble. After an argument between the appellant and the deceased, a struggle ensued following which the appellant succeeded in tying her up. He then took money from her and an electronic teller card, forcing her to reveal the relevant code. A further argument developed, in the course of which the deceased compared the appellant unfavourably with her new husband/boyfriend, and the appellant then slapped the deceased. His evidence in chief continued as follows:- "A. Then after I had slapped her, I said to her:
'Tell me what is so good about him.'
And while I was asking her, then I kept on pushing her and I repeated this question, that is, I asked her several times. Then after I had hit her, then at that time she became mad. She blew her head off and she said that her boyfriend could make her very happy while in bed. Then she said that that was better than me. And she said that I was so quick that I was just like a newspaper selling boy. B. How was your response to that? A. Then I hit her again, that is I further slapped her. I said:
'You can even utter such cheap things.'
She said that she liked to say so, and she said that I had no right to control her, and she said that at that moment I had no relationship with her at all. After she had said so then at that moment I was very angry. What she had said made me feel despair - no hope at all - for her. I had stayed with her for so many years; and even in 1986 after we had separated and she started to treat me not so good, yet I managed to maintain relationship with her because I still had some fancy about her, that is, I still imagined that one day she would change back into what she had been before, that is, she would become the girl whom I had come to know initially. That is why even later when she treated me not so good at all, it only made me disappointed but still I had a hope on her. But then, at this moment after she had said all those words then I felt that everything had gone. All these years I was simply deceiving myself; actually she was just playing me all the time. I had wasted so much time on her and it was only at this moment that I realized that she had only played me. At that moment everything just popped up to me inside and I did not want to hear her any more; so I told her to shut up. Then I picked up that knife and pointed the knife at her. At that time what she had said to me made my very angry and desperate, I felt that some heat had popped up into my hear, so I pointed the knife at her and I told her not to say any more. I said:
'If you have the guts, then go ahead to say something.'
Then she said: 'Really, I don't believe you dare to; and if you have the guts, then touch me.', and she said that her husband would chop me into nine pieces and to play with me. Those words of hers were the last words I ever heard from her for later whether she really said anything then I don't know. Q. Why not? A. After she had said so then I could no longer control myself; I just went mad and used the knife to stab her. At that time I was really mad and I just kept on stabbing her. I did not know how long it lasted. I sat on the bed feeling numb."[5]Following the stabbing the appellant regained his composure only to find that he had his hands round the neck of the deceased. He left, taking with him jewellery stolen from the deceased. After leaving the premises the appellant and Dl used the electronic teller card and obtained HK$6,000. The appellant met D2 and D3 for dinner that night, went to a movie and again used the electronic teller card, withdrawing a further HK$6,000.[6]Two defences were relied on by the appellant at the trial, viz. diminished responsibility and provocation. Two medical witnesses were called on behalf of the defence - Dr. Lee, a chartered clinical psychologist, and Dr. Chan, a member of the Royal College of Psychiatrists in London. Dr. Lee stated that, after conducting tests to assess the appellant's intellectual function, he found evidence which was indicative of "some form of an organic brain problem". He concluded that the appellant's ability "was noted to be impaired, especially in the left side of his brain and towards the frontal areas". Dr. Chan carried out an electro-encephalogram test on the appellant, which revealed a persistent slow wave in the left frontal central area of the brain, which he concluded to be indicative of a cerebral lesion and to correlate well with Dr. Lee's test. At the trial the appellant gave evidence that, following a fall in which he was rendered unconscious, he had experienced several episodes of responding irritably to minor provocation in which he felt "the sense of hot flush rising from the abdomen", following which he became unable to keep control and acted explosively. His evidence was that this sensation occurred at the time of the attack by him on the deceased which resulted in her death. Dr. Chan considered this experience to be a typical expression of an aura preceding an epileptic attack; and stated that, though the appellant showed no other manifestations of epilepsy, "these findings are often found in patients with an organic brain damage who found difficulty in controlling an impulse". A witness called by the prosecution, Dr. Tsang, also a member of the Royal College of Psychiatrists in London, provided some confirmation of the evidence of Dr. Chan to the extent that he, perhaps reluctantly, accepted that the appellant had the kind of brain damage described by the other medical witnesses, but nevertheless noted the absence of another symptom, viz. headaches, and considered it unlikely that the appellant suffered from episodic dyscontrol because he had exhibited no aggressive tendencies while in prison on remand.[7]Counsel for the appellant submitted at the trial that this evidence was relevant not only to diminished responsibility but also to provocation. The judge, however, rejected that submission, and so did not refer to the evidence when directing the jury on provocation. In the result the jury convicted the appellant of murder, rejecting both pleas. The appellant applied for leave to appeal to the Court of Appeal against his conviction of murder, on the ground that the judge had misdirected the jury on provocation by failing to direct them to have regard to the medical condition of the appellant; but the Court of Appeal, having granted leave, dismissed the appeal, holding that the judge was right to disregard this evidence for that purpose. The Court, in a judgment delivered by Power V.-P., conducted a careful review of the authorities on the subject. Their conclusion was expressed in a passage in which they referred both to section 3 of the Hong Kong Homicide Ordinance (which, in terms identical to those of section 2 of the English Homicide Act 1957, introduced the defence of diminished responsibility in the law of murder in Hong Kong) and section 4 (which, identical to section 3 of the Act of 1957, amended the law of provocation), and said:- "Section 3 provides for the defence of diminished responsibility which is concerned with abnormalities of the mind which substantially impair mental responsibility. That section provides a defence to persons suffering from an abnormality of the mind. There is no reasonable man test applicable thereto. Section 4, on the other hand, is not, as it stands, concerned with the mental abnormalities but, recognizing that a person may be driven to kill after having been provoked, applies the test of the reasonable man to the assessment of the loss of self-control. Great difficulty, it is true, can arise when applying that test, particularly when it is necessary to determine the effect of a mental condition. Such a condition is properly the central issue when considering diminished responsibility but is, we are satisfied, rightly, when the central issue is provocation, not to be considered unless it can be shown that the provocation was directed at the condition."[8]It is from that decision that the appellant now appeals to their Lordships' Board.[9]For the appellant Mr. Martin Thomas Q.C. submitted that an analysis of the relevant authorities, and in particular the New Zealand authorities on the definition of provocation contained in section 169 of the New Zealand Crimes Act 1961 (including the analysis of North J. in R. v. McGregor [1962] N.Z.L.R. 1069, adopted by the English Court of Appeal in R. v. Newell (1980) 71 Cr.App.R. 331) revealed a development of the law which permitted the mental condition of the defendant to be taken into account for the purposes of the objective test in the law of provocation. For the respondent Mr. Bruce submitted that to allow juries to take account of the appellant's brain damage and episodic dyscontrol condition would be to undermine the objective test, viz. whether the provocation is enough to make a reasonable man do as the defendant did, as interpreted by Lord Diplock in R. v. Camplin [1978] AC 705 .[11]In considering the question in the present case, their Lordships turn first to the words of the statute, section 3 of which (identical to section 4 of the Ordinance) provides as follows:- "Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man." It has, of course, been pointed out many times that the statute does not codify the common law, but amends it. Even so it is clear that the statute has not only retained the objective test, but has recognised the test to be whether the provocation was enough to make a reasonable man do as the defendant did, and that "in determining that question the jury shall take into account everything both done and said according to the effect which, in [the jury's] opinion, it would have on a reasonable man". It is not therefore open to the courts either to discard the objective test, or to interpret it in a manner inconsistent with the statute.[12]The leading case on the law of provocation following the enactment of the statutory amendment, and therefore on the interpretation of the section, is R. v. Camplin [1978] AC 705 . The question directly in issue in that case was whether, at a trial of a young man of 15 years of age for murder, the trial judge had erred in directing the jury that, with regard to provocation, they must consider the objective test in relation to a reasonable man and not to a reasonable boy of the age of the defendant. The House, affirming the decision of the Court of Appeal, held that this constituted a misdirection.[14]The leading judgment was delivered by Lord Diplock. Lord Fraser of Tullybelton and Lord Scarman both agreed with his judgment. Moreover at the conclusion of his judgment he encapsulated his understanding of the law in a proposed direction for juries, with which all members of the Appellate Committee agreed. The essential features of Lord Diplock's analysis were as follows. First, having traced the development of the doctrine of provocation at common law, he identified (at pages 716B-C) the intention of section 3, which recognised and retained the dual test, to be to mitigate in some degree the harshness of the common law of provocation as developed in recent decisions of the House of Lords. Second, he stated (at page 716F) that the public policy underlying the adoption of the "reasonable man" test in the common law doctrine of provocation was "to reduce the incidence of fatal violence by preventing a person relying upon his own exceptional pugnacity or excitability as an excuse for loss of self-control". Nevertheless the test now fell to be applied in the context of a law of provocation that was "significantly different from what it was before the Act was passed". He continued (at pages 716H-717B):- " ... for the purposes of the law of provocation the 'reasonable man' has never been confined to the adult male. It means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today. A crucial factor in the defence of provocation from earliest times has been the relationship between the gravity of [the] provocation and the way in which the accused retaliated, both being judged by the social standards of the day ... But now that the law h34 been changed so as to permit of words being treated as provocation even though unaccompanied by any other acts, the gravity of [the] verbal provocation may well depend upon the particular characteristics or circumstances of the person to whom a taunt or insult is addressed. To taunt a person because of his race, his physical infirmities or some shameful incident in his past may well be considered by the jury to be more offensive to the person addressed, however equable his temperament, if the facts on which the taunt is founded are true than it would be if they were not. It would stultify much of the mitigation of the previous harshness of the common law in ruling out verbal provocation as capable of reducing murder to manslaughter if the jury could not take into consideration all those factors which in their opinion would affect the gravity of taunts or insults when applied to the person [to] whom they are addressed."[15]This reasoning led to the conclusion that the decision of the House of Lords in Bedder v. D.P.P. [1954] 1 W.L.R. 1119 (in which the House had rejected as irrelevant the impotence of the defendant who had been taunted with that very failing) was inconsistent with the Act and so was no longer good law.[16]Next Lord Diplock concluded (at page 717H) that age may be taken into account when "determining what is the degree of self-control to be expected of the ordinary person with whom the accused's conduct is to be compared". Finally he epitomised his understanding of the law in a proposed direction to juries along the following lines (see pages 718E-F):- "The judge should state what the question is using the very terms of the section. He should then explain to [the jury] that the reasonable man referred to in the question is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but also whether he would react to the provocation as the accused did."[17]As already recorded, Lord Fraser and Lord Scarman agreed with Lord Diplock. Lord Morris of Borth-y-Gest and Lord Simon of Glaisdale delivered separate judgments; but, as is evidenced by their agreement with Lord Diplock's proposed direction to juries, they too agreed with him in all essential respects. In particular Lord Simon stated (at page 727D) that "the standard of self-control which the law requires before provocation is held to reduce murder to manslaughter is still that of the reasonable person", and (at page 726F) that the reference in section 3 to a "reasonable man" means "a man of ordinary self-control".[18]Their Lordships have taken the exceptional course of quoting a substantial part of Lord Diplock's judgment to emphasise that, on the basis that a "reasonable man" in the section means a "person having the power of self-control to be expected of an ordinary person", everything that Lord Diplock said was entirely consistent with the words of the section. In particular, to take into account the gravity of taunts or insults when applied to the person to whom they are addressed is consistent with the hypothetical person having such power of self-control, as is the fact that the sex and age of the defendant may be taken into account, so that the hypothetical person is treated as having the power of self-control to be expected, where appropriate, of an ordinary man or woman or an ordinary young person. The same view was expressed in the unanimous judgment of the High Court of Australia in Stingel v. R. (1990) 171 C.L.R. 312, with reference to age in the sense of immaturity, when it was said (at page 652C) that "the approach may be justified on grounds other than compassion, since the process of development from childhood to maturity is something which, being common to us all, is an aspect of ordinariness". But it is an entirely different question whether the mental infirmity of the defendant which impairs his power of self-control should be taken into account; and indeed it is difficult to see how it can be consistent with a person having the power of self-control of an ordinary person.[19]It is of some interest to refer at this stage to Professor A.].[20]Ashworth's article on the Doctrine of Provocation in [1976] C.L.J. 292, to which their Lordships wish to express their indebtedness. In his article Professor Ashworth observed of the common law (at page 299) that "the law's paramount concern is to ascertain whether the accused showed a reasonable amount of self-restraint". He went on to observe that provocation can rarely be described as "grave" per se; in general, this can only be so in relation to persons of a particular class. From this he concluded (at page 300) that:- "The proper distinction '" is that individual peculiarities which bear on the gravity of the provocation should be taken into account, whereas individual peculiarities bearing on the accused's level of self-control should not."[21]This conclusion of course also involved the rejection of the decision of the House of Lords in Bedder v. D.P.P. [1954] 1 W.L.R. 1119.[22]Professor Ashworth's article was published in 1976, and Camplin was decided by the House of Lords only two years later. The similarity between the approach recommended by Professor Ashworth, and that adopted by the House of Lords in Camplin, is so great that it is difficult to believe that his article did not, at least indirectly, influence the reasoning and the conclusion in that case.[23]Their Lordships wish to add that the recent decision of the House of Lords in R. v. Morhall [1995] 3 W.L.R. 330 is in no way inconsistent with the reasoning in Camplin. That case was concerned with the question whether a defendant who was taunted with his addiction to glue-sniffing, or solvent abuse, was precluded from saying that that characteristic could be taken into account when considering the objective test, because such a characteristic was inconsistent with the concept of the reasonable man. The House of Lords rejected that approach, holding that a characteristic such as this should not be excluded merely because it was discreditable. In so holding, the House invoked Lord Diplock's statement that the "reasonable man" in the section should be understood to be a person with the ordinary person 's power of self-control, but in other respects sharing such of the defendant's characteristics as the jury might think would affect the gravity of the provocation to him.[24]However it was only two years after the decision of the House of Lords in Camplin when, in R. v. Newell (1980) 71 Cr.App.R. 331, the English Court of Appeal took the step of looking for sale guidance, on the interpretation placed by Camplin on section 3 of the English Homicide Act 1957, to a prolonged obiter dictum of North J. when delivering the judgment of the New Zealand Court of Appeal in R. v. McGregor [1962] N.Z.L.R. 1069, on the interpretation of section 169 of the New Zealand Crimes Act 1961, which contained a new statutory definition of provocation in the crime of murder in that country. The most relevant part of the section was section 169(2), which provided that:- "(2) Anything done or said may be provocation if -(a) in the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control; and(b) it did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide."[25]The New Zealand Act had been mentioned briefly in argument in Camplin, when Lord Scarman (at page 710A) suggested to counsel for the Crown that section 169(2)(a) of the Act might be the same as section 3 of the Homicide Act 1957. This suggestion was rejected by counsel on the basis that the wording of the two statutes was different. In the result, though it is legitimate to infer that the New Zealand Act exercised some influence on the judgment of Lord Diplock in so far as it referred to "the power of self-control of an ordinary person", neither the Act nor McGregor received any mention in the judgment of Lord Diplock (with which both Lord Fraser and Lord Scarman agreed), or indeed in the judgment of Lord Morris. Only Lord Simon (at page 727C) expressed the opinion that English law was "substantially the same" as section 169(2) of the New Zealand Act as explained in McGregor. This imprecise statement cannot, in their Lordships' opinion, have been intended to suggest that precise guidance as to the interpretation of the English statute could be derived from McGregor. Nevertheless it appears to have provided the genesis of the judgment of the English Court of Appeal in Newell.[26]In that case, the Court of Appeal were concerned to ascertain the meaning of the word "characteristics" as used in Lord Diplock's judgment in Camplin. For that purpose, they turned immediately to McGregor, which had been referred to by Lord Simon in Camplin. The Court then quoted a long passage from the obiter dictum of North J. (though omitting an early part of it which shows North J. relying on the particular words of the New Zealand Act); and then, without embarking on any analysis, the Court of Appeal stated (at page 340) that the part quoted "seems to us to be impeccable" and "represents also, we think, the law of this country as well as the law of New Zealand". From it they drew the conclusion that a "characteristic" for the purposes of provocation should be a more than transitory phenomenon - a conclusion upon which some doubt was later to be cast by the House of Lords in Morhall [1995] 3 W.L.R. 330, 337. The actual decision in Newell, which was to the effect that the judge was right to direct the jury to leave out of account the drunkenness of the defendant when considering the objective test in provocation, was doubtless correct, possibly on the basis that as a matter of policy intoxication does not of itself excuse a man from committing a criminal offence (see Morhall at page 337G, per Lord Goff of Chieveley). But in the respectful opinion of their Lordships, it must be unwise to impose uncritically upon an English statute an interpretation placed upon a statute from another jurisdiction, which is not expressed in the same words. Of course, there is a strong affinity between English and New Zealand law on this subject, reflecting their common origin; and anything which has fallen from North J. is regarded with great respect in this country, as it is in New Zealand. But their Lordships feel compelled to say that the wholesale adoption, without analysis, of a substantial part of this obiter dictum, which covers a wide range of points on a notoriously difficult subject with particular reference to the New Zealand statute, is not a satisfactory approach to the interpretation of the objective test in provocation as recognised in the English statute. Each point must, in Hong Kong as in England, fall to be considered by reference to the words of the statute, their historical derivation from the common law, and the legislative setting (where relevant) at the time of enactment.[27]The passage from North J.'s judgment which is of most relevance for present purposes is concerned with his treatment of what he called "purely mental peculiarities" of the defendant. He considered that these might qualify as "characteristics" to be taken into account for the purposes of the objective test, but that to do so "there must be something more, such as provocative words or acts directed to a particular phobia from which the offender suffers" (see page 1082, lines 29-31). For otherwise the objective test would be denied any real operation, and a substantial step would be taken towards the admission of a defence of diminished responsibility in New Zealand without the statutory authority to sanction it, the defence not being recognised in New Zealand law. Their Lordships observe in passing that this approach to mental infirmity of the defendant is inconsistent with the submission advanced to them on behalf of the appellant in the present case.[28]The danger inherent in adopting a test laid down with reference to a different statute in another jurisdiction can be seen in the fate which subsequently befell North J.'s dictum in New Zealand. First, it was subjected to trenchant criticism in Adams on Criminal Law, 2nd ed., paras. 1264-9. Next it was found to create difficulties when applied in practice, which finally resulted in its being disapproved by the New Zealand Court of Appeal in R. v. McCarthy [1992] 2 N.Z.L.R. 550. In his judgment in that case Sir Robin Cooke P. listed five cases in which, among others, difficulty had been caused. A particular problem appears to have arisen from North J.'s requirement that "mental peculiarities" cannot be taken into account unless, in particular, the provocation was directed towards them. Judging from R. v. Taaka [1982] 1 N.Z.L.R. 198 and R. v. Leilua [1986] N.Z. Recent Law 118, to which their Lordships were referred in the course of argument, it appears that there had developed a tendency for New Zealand courts to take into account the mental infirmity of the defendant as such for the purpose of the objective test. There is every reason to believe that the spur for this development lay in the absence of any defence of diminished responsibility in the law of murder in New Zealand. At all events in McCarthy Sir Robin Cooke P. considered that North J.'s "added observations" may have "unduly restricted the ambit of the provocation" (see McCarthy at page 558, line 7). There followed a significant passage in Sir Robin's judgment:- "The added observations appear to have been influenced by the view that diminished responsibility had not been accepted by the New Zealand Parliament; yet, within a limited field, this may be seen as the inevitable and deliberate effect of the statutory changes embodied in s. 169 of the Crimes Act 1961."[29]In other words, Sir Robin now considers that section 169 may have had the legislative purpose of introducing diminished responsibility into the limited field of provocation. Their Lordships comment that no such purpose can have been intended by the legislature in section 3 of the Homicide Act 1957 or in section 4 of the Hong Kong Ordinance, when by a neighbouring section in the same statute the defence of diminished responsibility had been introduced by the legislature as a matter of general application in the law of murder. This is a point to which their Lordships will return. It must however follow from Sir Robin Cooke's judgment in McCarthy that decisions of the New Zealand Court of Appeal in cases such as Taaka and Leilua, in which the mental infirmity of the defendant was as such taken into account for the purposes of the objective test in provocation, cannot provide any safe guidance on the construction of the English or Hong Kong legislation on the subject.[30]The history of the New Zealand cases on this subject reveals that the approach adopted by the Court of Appeal in Newell has exercised an unhappy influence upon the reasoning in subsequent decisions of the Court of Appeal in which reliance was placed on Newell. This applies in particular to R. v. Ahluwalia [1992] 4 All ER 889 , in which Newell was relied on, as were Taaka and Leilua, and led the Court of Appeal to suggest that certain characteristics of the defendant relating to his or her mental state or personality may as such be taken into account by the jury for the purposes of the objective test (see page 890b-d). It is unfortunate that the attention of the Court of Appeal was not drawn to McCarthy, decided five months earlier, in which the obiter dictum of North J. in McGregor had been rejected and Sir Robin Cooke P. had expressed the view that mental characteristics of the defendant could be taken into account because of the deliberate intention of the New Zealand Parliament to achieve a partial recognition of the defence of diminished responsibility. Their Lordships feel confident that, if Sir Robin Cooke's judgment in McCarthy had been drawn to the Court's attention, they would have appreciated that the New Zealand case law on the interpretation of section 169 of the New Zealand statute no longer provided safe guidance on the interpretation of the English statute, for which it was necessary to return to the authoritative statement in Lord Diplock's judgment in Camplin. The same comment may be made of judgments of the Court of Appeal in other cases, such as R. v. Dryden [1995] 4 All E.R. 987 and in R. v. Humphreys [1995] 4 All E.R. 1008. Their Lordships wish to add that they do not find it possible to segregate certain psychological illnesses or disorders as being "in no way repugnant to or wholly inconsistent with the concept of the reasonable person" (see Humphreys at page 1022 E-G) and so attributable to the reasonable person for the purposes of the objective test in provocation, notwithstanding that the effect of such an illness or disorder is to deprive the person so afflicted of the ordinary person's power of self-control.[32]In these circumstances their Lordships return to the interpretation placed on the English statute in Camplin for guidance in answering the question posed for their consideration in the present case. Their conclusion is that, on the principles there stated, there is no basis upon which mental infirmity on the part of the defendant which has the effect of reducing his powers of self-control below that to be expected of an ordinary person can, as such, be attributed to the ordinary person for the purposes of the objective test in provocation. First of all, for mental infirmity of the defendant so to be taken into account would be inconsistent with the statute as interpreted in Camplin, in which it was held that the reasonable man referred to in the statute means a person having the power of self-control to be expected of an ordinary person. But their Lordships wish to state that, in so holding, they are not simply treating the matter as one of literal application of the principle stated in Camplin. That principle is, in their respectful opinion, well-founded in law. It is widely accepted that section 3 of the Act of 1957 is not a codifying Act, but an amending Act which expressly recognised and retained the objective test as established in the common law subject to the amendments provided for in the section. Having regard to the principles of common law then applicable, the intention must, as Professor Ashworth has convincingly demonstrated in his article in [1976] C.L.J. 292 at pages 299-300, have been that individual peculiarities of the defendant affecting his power of self-control should not, as such, be taken into account for the purposes of the objective test. Moreover an indication of the problems involved in so taking mental infirmity into account is provided by R. v. Raven, briefly reported in [1982] Crim.L.R. 51, which was concerned with the trial for murder of a man whose physical age was 22 years, but whose mental age was only 9 years. The Recorder of London directed the jury that, in considering the objective test in provocation, they should attribute to the reasonable man the retarded development and mental age of the defendant. It is scarcely surprising that Professor Birch, in her commentary on the report, should have expressed the opinion that "putting oneself in the position of a reasonable 22 year old with a mental age of nine is a tremendously difficult feat". Even greater problems would arise if the appellant's argument was to be accepted in the present case, in which event the jury should have been directed to attribute to the reasonable man, i.e. a man having the ordinary man's power of self-control, the appellant's brain damage with the consequent impairment of that power.[33]Their Lordships' conclusion on the effect of section 3 of the English Act is moreover consistent with that formed by the High Court of Australia in Stingel with reference to section 160(2) of the Tasmanian Criminal Code, which provided that:- "Any wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person of the power of self-control and which, in fact, deprives the offender of the power of self-control, is provocation, if the offender acts upon it on the sudden, and before there has been time for his passion to cool."[34]The Court said (at page 327):- "The function of the ordinary person of s.160 is the same as that of the ordinary person of the common law of provocation. It is to provide an objective and uniform standard of the minimum powers of self-control which must be observed before one enters the area in which provocation can reduce what would otherwise be murder to manslaughter. While personal characteristics or attributes of the particular accused may be taken into account for the purpose of understanding the implications and assessing the gravity of the wrongful act or insult, the ultimate question posed by the threshold objective test of s.160(2) relates to the possible effect of the wrongful act or insult, so understood and assessed upon the power of self-control of a truly hypothetical 'ordinary person'. Subject to a qualification in relation to age (see below), the extent of the power of self-control of that hypothetical ordinary person is unaffected by the personal characteristics or attributes of the particular accused."[35]Their Lordships also refer to the similar statement of the law by Brennan, Deane, Dawson and Gaudron J.J. in Masciantonio v. R. (1995) 69 A.L.J.R. 598 at pages 602-3, with reference to the common law of provocation applicable in the State of Victoria.[36]It is of course consistent with Lord Diplock's analysis in Camplin, and indeed with the decision of the House of Lords in Morhall, that mental infirmity of the defendant, if itself the subject of taunts by the deceased, may be taken into account as going to the gravity of the provocation as applied to the defendant. Such a conclusion was also consistent with the opinion expressed obiter by North J. in McGregor. But this is a far cry from the appellant's submission that the mental infirmity of the defendant impairing his power of self-control should as such be attributed to the reasonable man for the purposes of the objective test.[37]Their Lordships have reached the foregoing conclusion as a matter of construction of the English Act (and therefore of the Hong Kong Ordinance). But they are, like the Hong Kong Court of Appeal, fortified in that view by reference to the defence of diminished responsibility introduced into English law by section 2 of the same Act, and into Hong Kong law by section 3 of the same Ordinance. To accept the appellant's submission would, in their Lordships' opinion, be to incorporate the concept of diminished responsibility indirectly into the law of provocation. Such a conclusion is most unlikely to have been intended by the legislature which, in a neighbouring section in the same statute, introduced diminished responsibility as a defence of general application in the law of murder, and moreover did so subject to the imposition of a special rule relating to the burden of proof, viz. that the burden of establishing diminished responsibility should rest upon the defendant, though it should be the civil burden. If diminished responsibility was held to form part of the law of provocation, the extraordinary result would follow that a defendant who failed to establish diminished responsibility on the burden of proof placed upon him by section 2 of the English Act might nevertheless be able to succeed on the defence of provocation (as recognised in section 3) on the basis that, on precisely the same evidence, the prosecution had failed to negative, on the criminal burden, that he was suffering from a mental infirmity affecting his self-control which must be attributed to the reasonable man for the purposes of the objective test. This was precisely the result for which the appellant was contending before their Lordships. They do not consider that this could have been the intention of the legislature. But their Lordships wish to add that the recognition by the legislature of the defence of diminished responsibility gives a defendant suffering from abnormality of mind the opportunity to establish a defence upon which a very wide interpretation has been placed by the courts and which, if proved, has like provocation the effect of reducing to manslaughter what would otherwise be murder. For the courts, in interpreting section 2 of the Act, have given to the words "abnormality of mind" a very broad meaning, wide enough to embrace not only cases of "irresistible impulse", but also those cases in which the difficulty of the defendant in controlling (or rather failing to control) his behaviour was "substantially greater than would be experienced in like circumstances by an ordinary man, not suffering from mental abnormality": see Smith and Hogan, Criminal Law, 7th ed., p. 2132, referring in particular to R. v. Byrne [1960] 2 Q.B. 396, 403, per Lord Parker C.J. It follows that the spur which has occasioned the developments in New Zealand law culminating in the judgment of Sir Robin Cooke P. in McCarthy, to which their Lordships have referred, does not exist, at least to the same extent, in the law of England or the law of Hong Kong.[38]Their Lordships wish to add, as a footnote, that it may be open to a defendant to establish provocation in circumstances in which the act of the deceased, though relatively unprovocative if taken in isolation, was the last of a series of acts which finally provoked the loss of self-control by the defendant and so precipitated his extreme reaction which led to the death of the deceased. That such a series of events might cumulatively constitute provocation was the opinion expressed by Gibbs}. (as he then was) in Moffa v. R. (1977) 138 C.L.R. 601, 616 cited with approval by the High Court of Australia in Stingel at page 326. Whether such a principle could be successfully invoked in cases such as, for example, the "battered wife syndrome" is a matter upon which their Lordships can in the present case express no opinion, having heard no argument upon it, but must await a case in which the point arises for decision.[39]In conclusion their Lordships observe, though in no spirit of criticism, that they were not provided with any theoretical analysis of the concept of provocation, or of the various forms which it might take in the criminal law; and since the present case is ultimately concerned with a question of statutory construction, they have not thought it necessary themselves to indulge in any such exercise. Even so, it is plain that there must be a number of models from which a legislator might choose. He might, for example, adopt a purely objective approach, though doubtless this could take various forms. Such a model appears to have been adopted in those States of Australia in which the defence of diminished responsibility is not available. He might adopt an objective approach, but seek to mitigate its rigours by recognising the concept of diminished responsibility within the limited field of provocation, as Sir Robin Cooke appears to have understood the New Zealand Parliament to have intended. Then again he might adopt an objective approach, but combine the defence of provocation so formulated with a defence of diminished responsibility in the crime of murder. This appears to have been done in England and Hong Kong, and in those States of Australia in which the defence of diminished responsibility is recognised (which their Lordships understand to be New South Wales, Queensland and the Australian Capital Territory). Alternatively he might adopt a subjective approach, which their Lordships understand some jurists find attractive. This too could no doubt take various forms; but it would probably have to be so formulated, or to be subject to exceptions, so as to exclude socially undesirable cases such as intoxication or sheer bad temper. Again he might abolish the mandatory sentence for murder (a course of action which is understood to be widely supported in the United Kingdom), or even abolish the crimes of murder and manslaughter, replacing them with a crime of culpable homicide, in which event provocation could, where appropriate, be taken into account in mitigation of sentence. It is not however for their Lordships to decide what model would be most appropriate as a matter of justice. They have to apply the law; and since the intervention of the legislature, it has no longer been open to them to develop the law inconsistently with the statute, even if they thought it desirable to do so. If the statute is now perceived to lead to unacceptable results, steps should be taken as soon as possible to persuade the Hong Kong legislature, and the United Kingdom Parliament, to amend it. But what appears to have been happening in the English courts in recent years is an attempt, inspired by certain New Zealand cases, to transform the objective approach, recognised by the United Kingdom Parliament in 1957, into a subjective approach, though doubtless having the effect of excluding cases of intoxication and bad temper. This judicial modification of the statutory test has inevitably led to strains and stresses, notably in doubts about the scope of provocation in English law, but also in having to impose on juries an almost impossible task of having to adopt a subjective approach through the medium of the objective "reasonable man" test recognised in the statute. Their Lordships are driven to say that this is not a satisfactory situation, and in their opinion the solution is to be found in returning to the objective approach recognised in the statute as interpreted by Lord Diplock in Camplin.[40]For all these reasons their Lordships, in agreement with the Court of Appeal, are satisfied that there was no misdirection by the judge on provocation. There is however one point in the reasoning of the Court of Appeal to which they wish to refer, viz. that it is necessary for the provocation to have been directed at the relevant characteristic of the defendant. Their Lordships accept that, in the great majority of cases in which a characteristic of the defendant is relevant to the gravity of the provocation to him, the provocation will in fact have been directed at that characteristic, as where it is the subject of taunts by the deceased. But they wish to observe that this need not always be so, for there may be cases in which, for example, previous events mislead the defendant into believing that an innocent remark by the deceased was so directed when in fact it was not. For this reason, the requirement may be misleading.[41]Their Lordships will humbly advise Her Majesty that the appeal ought to be dismissed. Dissenting judgment delivered by Lord Steyn[42]I regret I am unable to agree that, on the central point in this case, the law of provocation of England and Hong Kong is as stated in the judgment of the majority. The difference of opinion.[43]It will be convenient to explain at the outset my understanding of the difference of opinion in this case. I agree with the conclusion of the majority that the Court of Appeal of Hong Kong erred in holding that it is a necessary pre-condition to the availability of the defence of provocation that the provocation must have been directed at the personal characteristic on which the defendant seeks to rely. There is no such artificial and restrictive rule. In view of the unanimity on this point I say no more about.[44]The nature of the difference of opinion can be illustrated by a few simple examples. Let me imagine the case where a woman shortly after giving birth to a child stabs and kills her husband during an argument. She wishes to put to the jury as part of her defence of provocation that she was suffering from postnatal depression which rendered her more prone to loss of self-control. A second example is the case where there is evidence that a woman, as a result of ill treatment by her husband, suffers from "battered woman syndrome". When taunted by her lover she stabs and kills him. She wants to rely on evidence of battered woman syndrome as part of her defence of provocation. The third example is a woman who suffers from a personality order which makes her more prone to loss of self-control. During a quarrel she stabs and kills her husband. She wants to rely on the personality order as part of her defence of provocation. A common feature of the three examples is that in none of them can the woman in any way be said to be at fault in inducing her condition. None of these cases can be explained away on a broad view of the provocative conduct of the husband or lover, i.e. the "last straw" argument. In all three cases the merits or demerits of the woman's argument cannot be determined on a priori grounds: in the context of provocation it is a matter of fact for exploration in evidence. But in all three cases the particular characteristic of the defendant is potentially relevant only inasmuch as it affects the degree of self-control of the defendant.[45]It is trite law that in all three cases relevant evidence of the woman's condition may be placed before the jury. To the extent that the particular condition falls beyond the experience of ordinary men and women such evidence may include opinion evidence by experts. See R.D. Mackay and Andrew M. Colman, Equivocal Rulings on Expert Psychological and Psychiatric Evidence: Turning a Muddle into Nonsense [1996] Cr.L.R. 88. Such evidence by witnesses of fact or experts may be relevant and admissible on the subjective issue whether the woman had in fact lost her self-control. Moreover, the trial judge would as a matter of fairness be bound to direct the jury that in regard to the subjective enquiry they ought to take into account the evidence as to the woman's condition at the time of the killing. But in my view the logic of the position of the majority is that in all three cases, whatever the strength of the evidence, the judge is as a matter of settled legal principle entitled, and indeed obliged, to direct the jury to ignore the evidence of postnatal depression, battered woman syndrome, and personality disorder when they consider the objective issue. On this basis a trial judge would have to direct a jury along the following lines: "Members of the jury, you have heard evidence regarding the defendant's postnatal depression. When you deal with the first and subjective enquiry you must carefully consider the effect of that evidence. But when you come to consider the second and objective enquiry, please put that evidence out of your mind. It is irrelevant".[46]In my view a jury would be rather puzzled by such artificially compartmentalized directions. Faced with such examples counsel for the prosecution expressly and freely acknowledged the unfairness of the potential results. His answer was: "that is the law". The view of the law contended for by the prosecution will inevitably lead to injustice. It will result in convictions of murder and mandatory life sentences in cases where that is wholly inappropriate, In my view our law does not compel such crude and unfair results, The principled solution is, however, not to be found in legal history or in New Zealand and Australian statutes and case law, It is to be found in the contextual scene of the reforming measure contained in section 3 of the Homicide Act 1957, I shall try to explain, The genesis of section 3 of the Homicide Act 1957,[47]By the end of the forties there was considerable dissatisfaction with the law of homicide, and notably the death sentence for murder. The Royal Commission on Capital Punishment, 1949-1953, was appointed, The Report of the Royal Commission was presented to Parliament in September 1953: Cmd 8932, For present purposes it is the Royal Commission's examination of the law of provocation and recommendations regarding that branch of the law, which are of importance, The Royal Commission first sketched the current law of provocation, They observed (at paragraph 134):- "Two conflicting tendencies may be traced in the evolution of the law of England with regard to provocation, On the one hand the courts have steadily limited the scope of provocation recognised as adequate to reduce murder to manslaughter, and have subjected it to increasingly strict and narrow tests, On the other hand the greater severity of the law has been tempered by leniency in its application. Judges have instructed juries in terms more favourable than the letter of the law would allow."[48]The Royal Commission explained (at paragraph 135):- "But the advance of society has also led to an increased concern for the individual prisoner and to a desire, so far as possible, to take account of the characteristics and mental reactions of the individual in applying the law. This has shown itself in the readiness of the courts and of the Executive to give weight to provocation insufficient in law to extenuate murder."[49]The Royal Commission then examined arguments for and against the retention of the objective or reasonable man test. It recommended that the objective test be retained. But it is important to note on what basis the recommendation was made. The Royal Commission concluded (at paragraph 145):· "We have indeed no doubt that if the criterion of the 'reasonable man' was strictly applied by the courts and the sentence of death was carried out in cases where it was so applied, it would be too harsh in its operation, In practice however, the courts not infrequently give weight to factors personal to the prisoner in considering a plea of provocation , and where there is a conviction of murder such factors are taken into account by the Home Secretary and may often lead to commutation of the sentence. The application of this test does not therefore lead to any eventual miscarriage of justice . At the same time, as we have seen, there are serious objections of principle to its abrogation. In these circumstances we do not feel justified in recommending any change in the existing law." (My emphasis)[50]The Report of the Royal Commission was the genesis of section 3 of the Homicide Act 1957. Indeed section 3 was intended to implement the recommendations on provocation of the Royal Commission. Section 3 reads as follows:- "Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man." (My emphasis)[51]Parliament had before it the Royal Commission's view that if the objective test was "strictly applied by the courts" the law would be "too harsh in its operation". But Parliament had the reassurance of the Royal Commission "that the courts not infrequently give weight to factors personal to the prisoner" and that "the application of this test does not therefore lead to any eventual miscarriage of justice". In other words Parliament was quite reasonably entitled to enact section 3 on the assumption that the courts in applying the reasonable man test would seek to avoid the injustices which would follow from a rigid and doctrinaire application of the test. It is a safe assumption that Parliament would not have wished to entrench potential injustices which had already been exposed. For example, Parliament could not possibly have intended that an immature youth should be judged by the standards of self-control of a reasonable man. Parliament adopted the not unusual course of not trying to solve an intractable problem but leaving it to the courts in the application of the Act to work out sensible and just solutions. R. v. Camplin,[52]The expectation that, in applying the reasonable man test in section 3 of the Homicide Act 1957, the judges would work Out sensible and just solutions was falsified at first instance in R. v. Camplin [1978] AC 705 , A boy, aged 15, had killed a man. He alleged that the man had buggered him. Boreham J. directed the jury that they must consider whether the provocation relied on had been sufficient to make a reasonable man, not a reasonable boy of the accused's age, in like circumstances act as the accused acted. A strong Court of Appeal presided over by Bridge L.J. (Later Lord Bridge of Harwich) set aside the conviction on the ground of misdirection. On appeal the Crown argued for a literal interpretation of section 3: counsel said that "if there is to be a standard it must be one which is universally applicable and in all ages". The Crown's argument was a classic example of begriffsjurisprudenz or conceptualistic reasoning. The House of Lords would have none of it.[54]Lord Diplock observed that "to require old heads upon young shoulders is inconsistent with the law's compassion to the human infirmity": at pages 717H-718A. I would add three observations. First, the relevance of youthfulness was obviously not dependent upon the provocation being directed to it. Secondly, the only relevance of youthfulness as a condition attributed to the reasonable man is the lesser degree of self control usually associated with it. Thirdly, counsel for the Crown challengingly put to their Lordships these rhetorical questions:
"If there were a different standard for a 15 year old boy, why not for an immature 21 year old person? Why should he not have the benefit?"
Yet there is nothing in the speeches to indicate that only youthfulness could qualify as "human infirmity" under the objective requirement. If their Lordships had in mind such a rigid and artificial numerus clausus it would have been quite easy to say so. They did not. Indeed Lord Simon of Glaisdale expressly posed the question:· "If youth is to be considered (and, presumably, advanced years), what about immaturity in a person of full years or premature senility?" He then observed (at page 725B-D):- "The original reasons in this branch of the law were largely reasons of the heart and of common sense, not the reasons of pure juristic logic. The potentiality of provocation to reduce murder to manslaughter was, as Tindal C.J. said in Rex v. Hayward, 6 C. & P. 157, 159, 'in compassion to human infirmity', But justice and common sense then demanded some limitation: it would be unjust that the drunk man Or one exceptionally pugnacious or bad-tempered or over-sensitive should be able to claim that these matters rendered him peculiarly susceptible to the provocation offered, where the sober and even-tempered man would hang for his homicide. Hence, I think, the development of the concept of the reaction of a reasonable man to the provocation offered - even though it may have originally come into this branch of the law by way of testing the credibility of the claim of the accused (who could not at that time himself give evidence) that he had been so deprived of his self-control as to be incapable of forming the relevant intent. But it is one thing to invoke the reasonable man for the standard of self-control which the law requires: it is quite another to substitute some hypothetical being from whom all mental and physical attributes (except perhaps sex) have been abstracted." (Emphasis added)[55]The italicised final sentence is inconsistent with any intention to treat youthful immaturity as the only mental characteristic relevant to the objective requirement. Indeed, later in his judgment Lord Simon made clear that "the entire factual situation, which includes the characteristics of the accused, must be considered": at page 727D. In context that did not exclude mental abnormality. And on this point no relevant difference of opinion was exposed by the speeches in Camplin. Indeed all their Lordships agreed on the terms of the model direction contained in Lord Diplock's judgment. For my part the actual decision in Camplin is perfectly consistent with a sensible interpretation of section 3 in its contextual scene. The subsequent English cases.[56]The next significant step in the evolution of this branch of the law came three years after Camplin. In R. v. Raven [1982] Crim.L.R. 51 the Recorder of London, following the rationale of Camplin as he understood it, ruled in a case of alleged provocation that the fact that a defendant aged 22 years had a mental age of about 9 years was a relevant factor in the objective enquiry. It was a ruling by a judge with great experience of this branch of the law. That ruling was reported some thirteen years ago. It has not been suggested in any subsequent decision or academic writing that Raven was wrongly decided. Indeed learned authors consistently treated it as correctly decided: Smith and Hogan, Criminal Law, 7th edn, 361. In a contemporary comment Professor Diane Birch, while clearly taking the view that the ruling of the judge, under existing law, was sensible and correct, commented that "putting oneself in the position of a reasonable 22 year old with a mental age of 9 is a tremendously difficult feat"; Professor Diane Birch, 1982 Crim.LR. 451. There is force in this lament about the state of the law but such practical difficulties are inherent in employing the device of the reasonable man. It is not significantly more difficult than asking jurors to imagine that they are one-legged, impotent or of a different racial or cultural background. In any event, the reason for the decision in Camplin was the lesser degree of self control of a youth. There is good sense in the maxim that the rule ought to follow where reason leads, and where reason stops there ought to stop the rule. And qualitatively there is no relevant distinction (as counsel for the prosecution put to their Lordships in Camplin) between youthfulness and immaturity due to impaired intellectual development. For these reasons I reject the invitation of the prosecution to hold that Raven was wrongly decided.[57]But there have been further developments. In R. v. Ahluwalia [1992] 4 All ER 889 a woman killed her husband. The deceased had allegedly abused and beaten the defendant over many years. The jury rejected her defence of provocation and convicted her of murder. On appeal counsel for the appellant argued that the judge had misdirected the jury by not asking them to consider in relation to the objective enquiry that her ill-treatment had affected her personality so as to produce a state of "learnt helplessness", a phrase used by experts who had identified this condition: (at page 897 E). That condition was also described as "battered woman syndrome". Delivering the judgment of the court Lord Taylor C.J. observed (at page 898 C-F):- "In the present case, there was no medical or other evidence before the judge and jury, and none even from the appellant, to suggest that she suffered from a post-traumatic stress disorder, or 'battered women syndrome' or any other specific condition which could amount to a 'characteristic' as defined in R. v. McGregor [1962] NZLR 1069. True, there was much evidence that the appellant suffered grievous ill-treatment; but nothing to suggest that the effect of it was to make her 'a different person from the ordinary run of [women]', or to show that she was 'marked off or distinguished from the ordinary [woman] of the community' . Had the evidence which has now been put before this court been adduced before the trial judge, different considerations may have applied. As it is, we consider that there was no basis for the judge to refer to a characteristic consisting of an altered personality or mental state in this appellant. Nor do we consider that, on the evidence before them, the jury would have been justified in finding such a characteristic. "[59]The court apparently considered that the alleged condition of the appellant, if supported by medical evidence, is relevant to the objective enquiry. Counsel for the prosecution on the present appeal argued that the Court of Appeal took the wrong view of the law. Since Ahluwalia there have been four decisions in the Court of Appeal which need to be considered. Three of these decisions pre-dated the oral hearing in the present case and the fourth was decided after the oral hearing. Despite the fact the Board has not had the benefit of counsel's observations on those cases it is impossible to do justice to the issue in this case without referring to them. The first case is R. v. Dryden, [1995] 4 All E.R. 987. In that case it was apparently common ground that the defendant, who shot and killed a planning officer who visited his property, was suffering from an abnormality of mind and clinical depression. He raised the defence of diminished responsibility and provocation. The jury convicted him of murder. He appealed on the ground that the judge had misdirected the jury. In dealing with the judge's directions on provocation, and in particular on the reasonable man test, the Lord Taylor C.J. said (at page 998 D-E):- "We have come to the conclusion that this was a characteristic, the obsessiveness on the part of the appellant and his eccentric character, which ought to have been left to the jury for their consideration. We consider that they were features of his character or personality which fell into the category of mental characteristics and which ought to have been specifically left to the jury."[60]But the Court of Appeal concluded that there was no miscarriage of justice and dismissed the appeal. The significance of this case is that what may have been an obiter dictum in Ahluwalia certainly ripened into ratio decidendi in Dryden. In R. v. Baille, decided on 28th July 1994, the Court of Appeal described Ahluwalia as authoritatively establishing the effect of section 3 of the Homicide Act 1957. In R. v. Humphreys [1995] 4 All E.R. 1008 the Court of Appeal had to consider whether immaturity may be a relevant characteristic of a defendant relying on provocation. The Crown submitted that Dryden had been decided per incuriam. In Humphreys the court rejected this submission. The court then observed that the appellant was (at page 1022L):- "unduly young for her comparatively young age and (this) brings the case, on this ground, into close comparison with Camplin."[61]This part of the reasoning of the court is an echo of the ground of decision in Raven. The last of the four cases is R. v. Thornton, The Times, 13th December 1995. A wife had stabbed her husband. He died. She was charged with murder. At the trial the defendant relied only on diminished responsibility. Given that there was evidence that the husband had persistently ill-treated the defendant, the judge left provocation as an issue the jury. The jury convicted the defendant of murder. Her appeal to the Court of Appeal was dismissed. Further medical evidence as to the mental condition of the defendant was placed before the Secretary of State. He referred the matter back to the Court of Appeal. The new medical evidence tended to prove that the appellant suffered from an obsessive personality disorder and "battered woman syndrome". The Lord Chief Justice held that the medical evidence as to the personality disorder of the defendant and the evidence of "battered woman syndrome" revealed potentially relevant characteristics of the appellant. He concluded:- " ... what characteristics of a defendant should be attributed by the jury to the notional reasonable person and how far the judge should go in assisting the jury to identify such characteristics, are issues which have been clarified in a number of decisions subsequent to this appellant's trial and indeed to her first appeal. The cases of Ahluwalia (supra), Humphreys (CA judgment 7 July 1995) and Morhall [1995] 3 WLR 330 make clear that mental as well as physical characteristics should be taken into account. Moreover, there is authority, especially from the judgment of the House of Lords in Morhall at page 338F that a Judge should give the jury directions as to what, on the evidence, is capable of amounting to a relevant characteristic. We consider that if the trial Judge had had the assistance of those authorities and of the further evidence we have before us, he should and would have given the jury directions as to the two characteristics now relied upon. We conclude that the fresh evidence and the clarification of the law to which we have referred cast doubt upon the basis of the jury's verdict in this case. We cannot therefore be sure that the verdict is safe and satisfactory."[62]In the result the Court of Appeal ordered a retrial. Diminished responsibility.[63]I have not lost sight of the existence of the defence of diminished responsibility. Section 2(1) of the Homicide Act 1957, and section 3(1) of the Homicide Ordinance of Hong Kong provide:- "Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing."[64]The burden of establishing this defence is on the defendant who raises it. It is an optional defence. Only if it is relied on by the defendant may the trial judge leave it to the jury. It is often a matter of tactical judgment whether a defendant, who suffers from an abnormality of mind, will be advised to rely on both defences or should simply rely on provocation where he shoulders no burden of proof. In any event, it is restricted to "an abnormality of mind" which "substantially impaired (the defendant's) mental responsibility for his acts". It does not cover the whole field of significant mental attributes which may affect provocation. It is no answer to the reasoning in Thornton. Taking stock of the arguments.[65]If Raven was correctly decided, as I believe it was, it follows that the present appeal must succeed. Moreover, that view is supported by the decisions of the Court of Appeal, starting with Ahluwalia and culminating in Thornton. The judges involved were Lord Taylor C.J., Hirst L.J., Henry L.J. and eight Queen's Bench judges experienced in criminal law. They would not have overlooked the relevance of the defence of diminished responsibility. Nor did they principally rely on New Zealand cases. Those decisions in the Court of Appeal are a logical extension of the decisions in Camplin and Raven. But even more important than the promptings of legal logic is the dictates of justice. Justice underpinned these decisions. And nothing in Camplin or R. v. Morhall [1995] 3 W.L.R. 330 precluded this development. It is simply an extension of the ratio of Camplin and Morhall was concerned with a different problem altogether i.e. a characteristic supplying the sting of provocative conduct.[66]The law remains that a defendant may not call in aid his own irascibility or pugnacity. The Royal Commission was confident that "minor abnormalities of character" must be ignored: paragraph 143. That does not mean that it was right to ask the jury to ignore the defendant's brain damage.[67]Counsel for the prosecution argued that it may prove difficult to say where the line should be drawn. We ought not to shrink for this reason from recognising a rational and just development. The traditional common law answer is apposite: any difficult borderline cases will be considered if and when they occur. In the meantime nobody should underestimate the capacity of our law to move forward where necessary, putting an end to demonstrable unfairness exposed by experience.[68]For these reasons I conclude that the trial judge misdirected the jury by failing to direct them that the evidence of the appellant's brain damage, and its impact on the appellant's response to provocation, depending on what the jury made of it, was relevant to the objective requirement of provocation. The effect of the misdirection.[69]The prosecution invited the Board to apply the proviso. The fact that the appellant failed to discharge the burden resting on him of proving diminished responsibility does not demonstrate how the jury reasoned in respect of provocation. It was for the jury to decide whether the prosecution had disproved the defence of provocation to a satisfactory standard. And the misdirection on provocation deprived the appellant of his best card, viz. the relevance of brain damage tending to cause the appellant to over react to minor provocation. In these circumstances it is impossible to apply the proviso. Conclusion.[70]I am accordingly of the opinion that the conviction of murder and resultant sentence ought to be quashed; that a verdict of manslaughter ought to be substituted; and that the matter ought to be remitted to the Court of Appeal to impose the appropriate sentence.