Practice and Procedure

R v HUI MIAO (2003)

PUBLISHED November 17, 2003

Where a defendant was tried for murder there was no need for the judge to leave the issue of provocation for the jury where there was only minimal evidence of loss of self control which, at most, could only give rise to a speculative possibility that the defendant lost control.Appeal, with leave of the single judge, against a conviction for murder imposed on 26 April 2002 at Kingston-Upon-Thames Crown Court. The defendant ('D') was sentenced by HH Judge Tilling to life imprisonment. D, who lived with the victim ('V'), carried her into a casualty department where attempts to resuscitate her failed and she was pronounced dead. It was the prosecution's case that the relationship between D and V was violent. He had been angry that she had been trying to avoid him because she wanted to leave him, so he strangled her. Medical evidence showed manual strangulation and use of a ligature and that when D had taken V to hospital she had been dead for about three hours. D admitted killing V by manual strangulation but that he had not intended to do so. He had not used a ligature and she was still alive when he took her to hospital. D also stated that V had suffered from TB and had trouble breathing, however, there was no medical evidence to that effect. At trial, D with agreement from the prosecution, invited the judge to leave the issue of provocation to the jury, the judge refused as there was only minimal evidence of loss of self control. D appealed conviction on the ground that, relying on R v Rossiter (1992) 95 Cr App R 326, the judge ought to have left provocation to the jury even if there was only minimal evidence.HELD: (1) Observations made in R v Rossiter (supra) were not capable of surviving the observations of Lord Steyn in R v Acock (1997) 2 Cr App R 94 who held that it was the duty of the judge to decide if there was evidence of provoking conduct. That was equally appropriate when considering whether there was any evidence that a defendant was provoked, as in R v Jones (Unreported 22/10/99). (2) In light of the authorities the law was clear. It was for the judge to decide whether there was evidence of provoking conduct and loss of self control. If there was sufficient evidence then that was for the jury, however, if there was insufficient evidence to find a reasonable possibility, rather than a merely speculative possibility, then the issue of provocation should not be left to the jury. (3) Although, on the assumption D's account of what V had done was true, there was evidence of potentially provoking conduct. However, in relation to whether he had lost self control his own evidence was that he had not lost control and he had not intended to kill her. (4) Looking at the evidence as a whole, whilst the judge's decision was courageous it was also correct. There was speculative possibility that on the evidence D might have lost self control but there was not enough material to put before the jury.Appeal dismissed.