Recent Judicial Decisions
| Author | W. H. D. Winder |
| DOI | 10.1177/0032258X6303600409 |
| Date | 01 April 1963 |
| Published date | 01 April 1963 |
| Subject Matter | Article |
W.
H.
D.
WINDER,
M.A.,
LL.M.
Legal
Correspondent
of
THE
PoLICE
JOURNAL
RDJENT JlJDIUIAL DDJISIONS
HON-UCIDE AND PROVOCATION
Lee
Chun-Chuen
v. The
Queen
The ruling
of
the Judicial Committee
of
the Privy Council in this
case [1963] 1 All E.R. 73) is likely to become the leading and much-
quoted authority on the meaning and application of provocation as a
factor which may reduce murder to manslaughter. The appellant's
conviction
of
murder was upheld because there had been no mis-
carriage of justice even though the Supreme Court
of
Hong Kong
had misdirected the jury as to the scope of provocation in law. The
mistake made by that court is understandable because reliance was
placed on a dictum by no less an authority than Lord Simon in the
leading case of Holmesv, D.P.P.
[1946]
2 All E.R. 124. This dictum
has now been
explained-or
explained
away-by
the Judicial
Committee in a judgment delivered by Lord Devlin. Strictly the
ruling should be called advice, rather than ajudgment, and it is not
formally binding as a precedent in England like the rulings
of
the
Court
of
Criminal Appeal and the House of Lords. But for practical
purposes it is treated as authoritative in the English courts, as is to
be expected in viewof the fact that the members
of
the Board giving
the advice are usually members
of
the House of Lords. In Lee
Chun-Chuen
v. The
Queen
(supra)
the three Judges were all Lords
of
Appeal in Ordinary.
It
was clearly laid down that the defence of provocation may arise
where a person does intend to kill or inflict grievous bodily harm
but
his intention to do so arises from sudden passion involving loss of self-
control by reason
of
provocation. In other words, for the defence
to apply he need not be so blinded by passion and provocation as
to have formed no clear intent. 'The trial Judge was in
error
in telling
the
jury
that
if
tbe provocation caused in the mind of the accused an
actual intention to kill or cause grievous bodily harm, then tbe
kiIIiq
would be murder.
It
could be manslaughter. Lord Simon did say
in Holmes v, D.P.P.
that"
where the provocation inspires an actual
intention to kill . . . or to inflict grievous bodily harm, the doctrine
that provocation may reduce murder to manslaughter seldom
196 April 1963
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