HKSAR v Bui Van Cuong [2023] 3 HKC 204, [2023] HKCA 367

Richard Donald and Kim McCoy represented the applicant in HKSAR v Bui Van Cuong [2023] 3 HKC 204, [2023] HKCA 367.

The applicant, a Canadian Vietnamese, was a visitor and had no fixed place of abode in Hong Kong. On 8 March 2016, he entered three times into a 7-Eleven convenience store of which the deceased was the storekeeper. On the first entry, he stayed there for a short while and left. Some minutes later, he returned to the store and, having taken a packet of tissues from the rack, followed by a can of potato chips, left without paying. The applicant was confronted by the deceased at the doorway, and he responded by raising his middle finger as well as eating the potato chips in front of the deceased. The deceased returned to the cashier counter to work. The applicant eventually threw the potato chips into the store and left. Then, the applicant went to a nearby supermarket where he took an 8-inch knife. He returned to the store, went into the cashier counter, slammed the knife on the counter and confronted the deceased. He also shouted at the deceased, ‘You’re gonna die’, six times. Following a scuffle, the applicant stabbed on the chest of the deceased, who died six days later due to multiple organ failure. At trial on a count of murder of the deceased, the applicant gave evidence that prior to coming to Hong Kong, he had failed to find a temple in China to enrol as a monk. While in Hong Kong, he ran out of money and resorted to sleeping at McDonald’s. He said he was frustrated with life and hoped to return to Canada. Regarding the utterances of ‘You’re gonna die’ and the slamming of the knife on the counter, the applicant told the jury that such was out of his ‘gangster personality’ and he had no intention to stab the deceased. In respect of the killing, the applicant said that his primary motive was to threaten the deceased to call the police so that he would be arrested and deported to Canada. The applicant also said it was the deceased who punched him many times, which caused him to fight back, resulting in the killing. The jury reached a unanimous verdict convicting the applicant of murder. The applicant applied for leave to appeal against conviction, with the sole ground of appeal proposed being that the trial judge failed to direct the jury to the peculiarities and/or characteristics of the applicant relevant to the provocation so as to be considered when assessing the gravity of the provocation, and in respect of the second, objective limb of the defence of provocation, whether the provocation was enough to make a reasonable man do as he did. The applicant also applied to adduce fresh evidence, namely a new psychiatric report with the view of demonstrating that the applicant was actually suffering from a mental disorder (schizophrenia) at the time of the offence.

Held, unanimously, dismissing the application:

Per A Pang JA

• (1) The new psychiatric report could not be admitted because it did not appear to be ‘likely to be credible’. The assessment made in the report, seeking to reconstruct the applicant’s mental condition some years prior to and at the time of the offence, had to be examined in light of the diagnosis of schizophrenia for the first time in August 2020, some 4½ years after the offence, the applicant having responding to medication and ridding of psychotic symptoms, the applicant having stopped taking medication nearer the time of the assessment, and the diagnosis shortly thereafter of relapse in January 2022. The report also had to be examined in light of the applicant’s psychiatric consultations documented over some six years. The first defence psychiatrist at trial, who conducted examination on the applicant much closer to the time of offence, had not been asked to review his opinion following the diagnosis of schizophrenia. Further, it would not afford a ground for allowing the appeal even if it were admitted. It was never suggested at trial that the taunts, if any, were directed at the applicant’s mental disease and therefore, whether the applicant might have been suffering from schizophrenia would not be a relevant factor when making the assessment of the gravity of the provocation (paras 31-34, 46).

• (2) The applicant’s evidence was that it was only when the deceased allegedly punched him did he then use the knife to stab. This would form the basis for the jury to consider the issue of provocation and would be relevant when they assessed whether, as a matter of fact, he might have actually lost his self-control. It would also provide the context to consider what characteristic, if any, would go to the assessment of the gravity of the provocation. Given the prosecution’s evidence, particularly the CCTV footage which was not contested, and given the applicant’s account as well as how provocation was (so narrowly) run at trial, it would not be surprising if the jury had rejected provocation on the subjective limb. After all, the deceased was captured by the CCTV as having acted calmly and remained so even after the applicant had slammed the knife on the counter and repeatedly said, ‘You’re gonna die’ to which the deceased, without raising his voice, simply replied that he did not want to die and asked the applicant to go outside. The prosecution accepted that the deceased did push the applicant out of the cashier counter and did try to ward the applicant off but according to the prosecution, it was never a case of punches being delivered by the deceased. Since the CCTV footage was produced before the jury, it would not be difficult for them to decide whether the deceased was simply pushing the applicant or punching him (paras 35-42).

• (3) There were two elements of the objective limb, namely, an assessment of the gravity of the provocation, and an assessment of how a person with ordinary power of self-control would or might react to provocation of that gravity. Both should be assessed objectively. In the present case, whilst it was correct that the judge did not specifically point out the applicant’s circumstances or his characteristics when directly the jury on the gravity of the provocation, she did, however, emphasise to them that they must first form a view as to the gravity of the provocation for the applicant in all the circumstances, taking into account everything said and/or done to the applicant, including any peculiarity of the defendant which affected that gravity; and a person having ordinary powers of self-control was simply a person who had the powers of self-control to be expected of an ordinary sober person who was of the defendant’s age and sex and with other special characteristics. Moreover, when reviewing the defence evidence with the jury, the judge not only highlighted what happened on the day of the killing but also referred to the applicant’s background and how he came to be in Hong Kong, having failed to become a monk in China. The fact that the applicant was homeless and ran out of money at the time was also repeated before the jury. Therefore, the test had been fairly summarised for the jury. Further, on the applicant’s account what caused or provoked him to stab was the deceased’s punches and not the annoyance caused to him because of the alleged failure of the deceased to call the police. If the evidence was that the applicant had been annoyed in that way and found the deceased’s inaction provocative, then perhaps, the applicant’s personal circumstances and his characteristics might have played a more significant role when one sought to contextualise such provocation. However, given that the provocative conduct, according to the applicant, only related to the punches, then it would not appear to matter much how contextualizing such punches would have materially affected the jury’s assessment of the gravity of the provocation. HKSAR v Liang Yaoqiang [2017] 2 HKC 123 ; (2017) 20 HKCFAR 1 applied (paras 48-54).

[The above is excerpted from the headnote to the report in HKC.]