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.
I understand the partial defence of provocation is still a valid defence in murder in Hong Kong. The said partial defence was raised, albeit unsuccessfully in HCCC 194/2012. The trial took place in late Feb/ early March this year before DHCJ Stuart-Moore.
回覆刪除I think very likely this reader is from UK. That is why the issue is raised.
刪除http://the-sun.on.cc/cnt/news/20140618/00408_003.html
回覆刪除馬恩國被釘牌一個月... 算不算重手?