馬恩國紀律聆訊之二

A reader left comments in 馬恩國紀律聆訊 raising a legal question about the defence of provocation since the defence of provocation was abolished in UK on 4 October 2010 by virtue of Section 56(1) of the Coroners and Justice Act 2009. Frankly, I am not aware of that. I am not sure this new UK enactment applies to HK. First of all, my Archibold is a 2007 version so it is not up-to-date. Second, the HK appeal cases I read show that the direction to jury still uses the partial defence of provocation for murder. Third, if we look at Section 4 of Homicide Ordinance Cap 339, we can see it is still good law here in HK. I quote,

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.

Unlike Section 56(1) of Coroners and Justice Act 2009, which says

56       Abolition of common law defence of provocation

(1)The common law defence of provocation is abolished and replaced by sections 54 and 55.
(2)Accordingly, the following provisions cease to have effect—
    (a)section 3 of the Homicide Act 1957 (c. 11) (questions of provocation to be left to the jury);

    (b)section 7 of the Criminal Justice Act (Northern Ireland) 1966 (c. 20) (questions of provocation to

        be left to the jury).

Fourth, in Direction 51 (Specimen Direction in Jury Trials), guidelines to high court judges by the HK Judiciary,  the provocation direction is still there and it begins like this:

1. There can only be an issue of provocation to be considered by the jury if the judge is of the opinion that there was some evidence of a specific act or words as provocation resulting in a loss of self-control....

In the circumstances, I think provocation can still be advanced as general mitigation and partial defence in murder in HK and it does not follow closely what UK has done. I am grateful if any learned brothers and sisters can enlighten me on that.