Case No: 200203040/B4 
Neutral Citation Number: [2003] EWCA Crim 3486
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Monday, 17th November 2003
 
B E F O R E:

THE VICE PRESIDENT 
(LORD JUSTICE ROSE)
MR JUSTICE LEVESON 
 
MR JUSTICE TUGENDHAT 
- - - - - - -
R E G I N A 

-v- 

HUI MIAO 
 
 - - - - - - -
Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
 - - - - - - -
MS S EDWARDS QC appeared on behalf of the APPELLANT
MR J LAIDLAW appeared on behalf of the CROWN
 - - - - - - -
J U D G M E N T 

1.	THE VICE PRESIDENT:  On 26th April 2002, at Kingston Upon Thames Crown Court, following a trial before His Honour Judge Tilling, the appellant was convicted of murder and sentenced to life imprisonment.  He appeals against conviction by leave of the Single Judge.
2.	The facts were these. From the beginning of July 2001 the appellant had lived with a woman called Li Ming Shen, who became his victim, in Fountain Road, Tooting.  They shared the kitchen and bathroom with other tenants of the house where they lived, one of whom was the victim's niece, Zhu Mei Chen, who had the room immediately below.
3.	The victim had been with her family in Bristol and returned home at about 6 o'clock on the evening of Sunday 29th July 2001.  In the early hours of the following morning, a little before 2.30 am, the appellant carried the victim into the accident and emergency department of St George's Hospital, Tooting.  Attempts were made by the hospital staff to resuscitate the victim but she was pronounced dead at 2.35 am.
4.	The prosecution case was that the relationship between the appellant and the victim had been argumentative and violent.  Indeed, on at least one occasion (if not more) the appellant had been seen assaulting the victim and threatening her life.  He was undoubtedly angry, said the prosecution, because she was trying to avoid him and he strangled her intending to kill her.  When he brought her to hospital rigor mortis had already set in indicating that she had been dead for something of the order of 3 hours.  There were marks on the neck, indicating strangulation and that a ligature may have been used.
5.	The defence case was that, although the appellant admitted that he had killed her, he had not intended to do so.  He had put his hands on her throat but he had not squeezed her throat or applied sufficient pressure to kill her, nor had he used a ligature.  The appellant also suggested (although the medical evidence on postmortem contradicted this) that the victim, in her 20s or 30s, had suffered from tuberculosis as a result of which she had had trouble in breathing.  The appellant claimed that she was still alive when he took her to hospital.
6.	The issue left for the jury was whether the appellant intended to kill or cause really serious harm.  Although provocation had been referred to briefly in the course of prosecuting counsel's opening, and although counsel for the defence, supported by counsel for the prosecution, invited the judge to leave provocation to the jury, he did not do so.
7.	In a little more detail it is necessary to refer to some of the other evidence. There was medical evidence that it was not possible, when the victim presented with the appellant at that hospital, to insert an airway because the victim's jaw muscles were clamped shut.  The muscle rigidity also observed in the abdominal muscles, although the arms were flaccid, indicated the onset of rigor and it was obvious to Dr Woodfine that the victim had been dead for some time.  He saw an obvious bruise across the front of the neck, consistent with her having been hanged or strangled.
8.	A forensic pathologist referred to the cause of death as strangulation, the injuries being consistent with both manual and ligature pressure.  He said that severe pressure would have been required and it would have needed to be sustained for a considerable period.
9.	There were no features to suggest that the victim had ever had tuberculosis nor were there any changes in the airways of the lungs rendering her more susceptible than an ordinary person to strangulation.  He said, in cross-examination, that he could not exclude the possibility that the marking on the front of the neck was due to the chain which the victim wore, having been compressed by the squeezing, but his experience suggested that a ligature had been used.
10.	There was evidence from the victim's niece that, about 2 months before, she had seen the appellant using violence to the head of the victim.  A little later there was a further incident in the street, which led to the police being called by a passerby.  There was other evidence of arguments between the appellant and the victim.
11.	When he was interviewed, through an interpreter, the appellant said: "I did not kill her. I did not intend to cause her grievous bodily harm." He accepted, subsequently, that he had caused the victim's death and claimed that she was having trouble breathing and had said something like "tight, tight, tight", by reference to her chest.  He was completely stunned when told that she was dead.
12.	He said, in evidence, in relation to the fatal evening, that everything was fine between them and they had made love, but then she had accused him of having an affair with her sister-in-law, slapped him, kicked him and started to shout and yell. He was afraid that she might attract the attention of neighbours and police - which neither wanted - and he put his hand over her mouth.  She bit his hand and put her hands round her throat.  To stop her he allowed his hand to slip to her throat. He could not say how long his hand was there or how hard his hand was on her.  He had no intention of squeezing her throat and no intention of causing her really serious injury, still less did he intend to kill her.
13.	Thereafter, he had left the room in order to get some cigarettes.  When he returned, 20 minutes later, he claimed she was still alive, though having trouble with her breathing. He had tried, unsuccessfully, to revive her and had then taken her to hospital.  He said, in cross-examination, that the problems between him and the deceased had been caused by members of her family.  Throughout his evidence, both in-chief and in cross-examination, he denied at any stage losing control because of the victim's behaviour.
14.	The submission which is made by Miss Edwards QC, on behalf of the appellant, is that the judge, who referred to there being "minimal" evidence of loss of self-control, ought to have left the issue of provocation to the jury.  If the jury accepted the defendant's account of what had happened, there were, on the part of the victim, both words and deeds which were capable of giving rise to provoking conduct.  The explosion of violence followed immediately after that potentially provoking conduct, if such there was, and therefore the matter ought to have been left to the jury.
15.	Mr Laidlaw, on behalf of the Crown before us, as he was at trial, admitted to a degree of embarrassment, but his position had been at trial that the judge ought to leave provocation to the jury.  The basis on which he submitted, in relation to evidence of loss of self-control, that the matter should have been left is put in this way in his written submissions, repeated orally before us:
"Bearing in mind what the defendant had said about events in the moments before he put his hands to her throat, and the fact that he had strangled a defenceless woman who was much smaller than him, it seemed at least possible that a jury may find that there may, bearing in mind where the burden of proof lies, have been a loss of control as a result of the provocative words and conduct." 
In his submissions to this Court he stresses the proximity in timing between the potentially provocative conduct, if such there was, as described by the defendant and the killing.  He accepted that there was no evidence of a frenzied attack, such as is sometimes found in cases where provocation is left to the jury.
16.	Section 3 of the Homicide Act, so far as is presently relevant, is in these terms:
"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..." 
The judge, in his ruling said this:
"It is clear that where the subjective condition of section 3, that is to say, where there is evidence that this particular defendant did in fact lose his self-control, and did so as a result of provocative words in this particular case, then the judge should leave that issue to the jury to determine the objective issue. However, where such evidence, as I am satisfied in this case that it is minimal, allied with the fact that such a defence clearly undermines his own actual defence of either self-defence or a lack of intent, then in my view it should not be left.  I find in this case that there is minimal evidence that this defendant did in fact lose his self-control, as the result of provocation. For those reasons, I am not going to leave provocation to the jury."
17.	Miss Edwards draws attention to the judge's use of the word "minimal", and submits that, on that basis, if there were such evidence, the issue of provocation ought to have been left to the jury.  In her written submission, in support of that proposition, she relied on certain observations made by Russell LJ, giving the judgment of the Court in R v Rossiter (1992) 95 Cr App R 326.  In the course of giving the judgment of the Court, (another member of which, it is to be noted, was Roch J, to whose judgment in another case we shall come in a moment), Russell LJ suggested that the issue of provocation should be left to the jury, if there were evidence "however tenuous." This Court needs no persuasion of the experience and expertise of the late Russell LJ in relation to the criminal law.  But, as it seems to us, that particular observation is not capable of surviving the observations made by Lord Steyn, with whose speech all the other members of the House of Lords agreed, in R v Acott [1997] 2 Cr App R 94, where the question was whether there was evidence of provocative conduct sufficient to be left to the jury.  At page 100E, Lord Steyn said:  
"It remained the duty of the judge to decide whether there was evidence of provoking conduct, which resulted in the defendant losing his self-control.  If in the opinion of the judge, even on a view most favourable to the accused, there is insufficient material for a jury to find that it is a reasonable possibility that there was specific provoking conduct resulting in a loss of self-control, there is simply no issue of provocation to be considered by the jury."
At 102E Lord Steyn said:
"If there is such evidence, the judge must leave the issue to the jury.  If there is no such evidence, but merely the speculative possibility that there had been an act of provocation, it is wrong for the judge to direct the jury to consider provocation. In such a case there is simply no triable issue of provocation." 
Those observations, as it seems to us, are equally apt when considering whether there is sufficient evidence that a defendant was provoked, as they are when considering whether there was evidence of provoking conduct.
18.	In R v Jones (unreported Court of Appeal (Criminal Division) transcript of 22nd October 1999) Roch LJ, giving the judgment of the Court said this, at page 7 of the transcript:
"Trial judges are inevitably aware that the giving of a provocation direction must tend to undermine lines of defence such as those which were advanced on behalf of the appellant in this case. It is unlikely that a person who has lost control of himself is acting in defence of another.  It is more likely that such a person will have intended to kill or to cause really serious physical harm.  For that reason a judge should not give a direction on provocation where evidence of provoking conduct by the deceased, or evidence that such conduct caused a loss of self-control by a defendant, is minimal or fanciful. To repeat the words of Lord Steyn, there has to be evidence of 'specific provoking conduct resulting in a loss of control.'"
It is apparent, in giving the ruling which he did in the present case, that Judge Tilling, by using the word "minimal" was alighting on one of the words used by Roch LJ in that passage in Jones, to which he had been referred.
19.	The law is clear in the light of the authorities to which we have briefly referred.  It is for the judge to decide if there is evidence of provoking conduct and loss of self-control.  If there is sufficient evidence, it is a matter for the jury.  If there is insufficient material to find as a reasonable, rather than merely speculative, possibility that there was provoking conduct and loss of self-control, there is no issue and the judge should not  leave provocation to the jury.  A trial judge is, in many cases, better placed than this Court to assess the quality and effect of the evidence which has been placed before the jury.
20.	In the present case, on the assumption that the defendant's account of what the victim did was correct (and it is to be noted that his account was manifestly incorrect in relation to what he must have done in order to cause this unfortunate woman's death), there was evidence of potentially provoking conduct sufficient to be left to the jury.  But, in relation to whether or not he lost his self-control, his evidence was that he did not. His evidence was that he did not intend to kill or to cause serious harm.  He denied, as we have said, squeezing his victim's throat with substantial pressure for a significant period.  He had previously used violence to this victim and threatened her. There was no evidence here of a frenzied attack, such as occurs in some of the authorities, for example, Rossiter, and in other cases where multiple stab wounds may suggest a frenzy on the part of the defendant.
21.	Looking at the whole of the evidence, therefore, although the judge's decision, as it seems to us, was courageous it was also correct. There was, no doubt, the speculative possibility that the defendant may, on the evidence, have lost his self-control. But, in our judgment, despite the views taken by both experienced counsel in the court below and despite their submissions made to this Court, there was no sufficient material, gauged by Lord Steyn's yardstick, which would have justified the judge in leaving the issue of provocation to the jury.  Accordingly, this appeal is dismissed.