Provocation

Provocation

The defence of provocation applies only where the defendant is charged with murder. In Hong Kong, provocation is governed by section 4 of the Homicide Ordinance (Cap. 339), which provides a statutory partial defence to murder. In one case, the court described provocation as some act done or words spoken by the deceased to the defendant that would cause any reasonable person suddenly and temporarily to lose his self-control, and that in fact caused the defendant to suffer a sudden loss of emotional control such that he was no longer master of his own mind. 

The legal principles concerning provocation were summarised in an English case as follows: 

1. the defendant must have been provoked (whether by things done, things said, or both) into losing his self-control, resulting in the killing or the other conduct constituting murder; 
2. this is a question of fact, and all relevant evidence is admissible, including evidence supporting the view that the defendant may or may not have lost his self-control; 
3. if the jury finds that the defendant may have been provoked into losing his self-control and acting as he did, the jury should, on all the evidence, assess the gravity of the provocation to the defendant in all the circumstances; and 
4. finally, the jury should consider the actual provocation ((a) and (b) above) together with its gravity ((c) above), and decide whether a person having ordinary powers of self-control would have done as the defendant did. 

The provocation need not come from the victim, and the words or conduct relied upon need not have been intended to provoke the defendant. 

Even where the provocation is "self-induced", it may still be possible to rely on provocation as a defence; for example, where the defendant's own unlawful conduct causes another person to react, and that reaction in turn provokes the defendant. 

The Reasonable Man Test 

The court has held that the "reasonable person" means a person of the same sex and age as the defendant, having ordinary powers of self-control. In other respects, however, where the jury considers that certain characteristics of the defendant would affect the gravity of the provocation to him, those characteristics may be taken into account. The question is not merely whether such a person would have lost self-control in a similar situation, but also whether he would have reacted as the defendant did. 

The "characteristics of the defendant" mean those personal attributes that are directly related to the provocation and that affect the gravity of the provocation to the defendant, rather than personal temperament generally. Two examples are given below by way of illustration. 

Example 1 (age): A, a 15-year-old youth, is raped by an adult, B, who then taunts A about it, causing A to lose self-control and kill B with a frying pan. In assessing whether the provocation was sufficient to cause a "reasonable person" to react in the same way, the jury should take into account A's age, because the same taunting causes far greater humiliation to a youth than to an adult. 

Example 2 (a bad habit or vice): The defendant A has long been addicted to glue-sniffing, and his friend B constantly taunts and humiliates him about it, until A loses self-control and stabs B to death with a knife. In assessing the gravity of the provocation, the jury should take into account A's glue-sniffing addiction, because the taunts were directed precisely at that characteristic, making the provocation particularly grave for A.