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LexisNexis Student Ambassador Programme 2018 2019 Priscilla Sung

The document discusses the partial defense of provocation in homicide law, highlighting its controversial nature and statutory basis in Hong Kong since 1963. It critiques the gendered implications of the defense, noting that it often favors men who claim provocation due to infidelity while disadvantaging women who kill out of fear after prolonged abuse. The text calls for scrutiny and reform of the provocation defense, emphasizing its potential to unjustly mitigate culpability and shift blame onto victims.

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Aadarsh Mehra
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5 views2 pages

LexisNexis Student Ambassador Programme 2018 2019 Priscilla Sung

The document discusses the partial defense of provocation in homicide law, highlighting its controversial nature and statutory basis in Hong Kong since 1963. It critiques the gendered implications of the defense, noting that it often favors men who claim provocation due to infidelity while disadvantaging women who kill out of fear after prolonged abuse. The text calls for scrutiny and reform of the provocation defense, emphasizing its potential to unjustly mitigate culpability and shift blame onto victims.

Uploaded by

Aadarsh Mehra
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PDF, TXT or read online on Scribd
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Defence of Provocation: A Gendered and Limited Concession to Human Frailty?

The partial defence of provocation in the law of homicide has been one of the most
controversial doctrines within Criminal Law. Initially being one of common law, this defence
is given a statutory footing in Hong Kong since 1963. Under Section 4 of the Homicide
Ordinance, an individual who is provoked into losing his or her self-control, later and whilst
still in that state, commits an act with an intention to kill or to cause grievous bodily harm,
causing the death of the deceased, may be acquitted of murder and be convicted of the lesser
offence of manslaughter instead.

To successfully plead this partial defence of provocation to murder, the test is “two-fold” for
the jury as affirmed by Lord Diplock in R v Phillips.1 The first question is subjective and one
of fact that whether “the defendant [was] provoked into losing his or her self-control”.2 The
provocative conduct may be acts or words or both, and it must be shown that consequently the
defendant suffered from a ‘sudden and temporary loss of self-control” at the time of killing.3
The next question is then an objective opinion that whether “a reasonable man [would] have
reacted to the same provocation in the same way as the defendant did”.4

The requirement of “sudden and temporary loss of self-control” in the first limb of the defence
has been argued as “profoundly gendered” and is based on “notions of male proprietary power
and control over spouses”.5 It has been shown that the defence is mostly invoked by chronically
violent men to assert that they were provoked by the suspected or actual infidelity of their
spouses, and the defence serves as an excuse for them to kill in the heat of anger.6 Whereas for
women who were subject to long-term risks of death or serious injury in their relationships and
who killed their spouses out of fear and despair might encounter difficulties invoking this
defence, as time has elapsed between the provocation and their acts of killing. As a result, they
would be expected by the law to have regained their self-control, when in fact they might have
just felt they were too weak to defend themselves at that particular moment. Hence it has been
contended that the defence is reprehensible in a way that it “ignores the context and reality of
women’s lives”.7

The limitations of the latter limb of the defence has also been the subject of much debate, in
particular on who the ‘reasonable person’ should be for the purposes of assessing this defence
of provocation. Although being an objective test for the jury, it does not in fact establish an
absolute objective standard. In DPP v Camplin, it is ruled that characteristics of the defendant
can be taken into account “at least to the extent that [they] affect the gravity of the provocation
to the defendant”.8 These include age, sex, ethnicity, religious values, and physical disability.9

1
[1969] 2 AC 130, at 137.
2
ibid.
3
Michael Jackson, Criminal Law in Hong Kong (5th edn, Hong Kong University Press 2011) 502, 509.
4
Phillips (n 1).
5
Helen Brown, 'Provocation as a Defence to Murder: To Abolish or to Reform' [1999] 12(1) The Australian
Feminist Law Journal 137-141; Adrian Howe, “Provoking Comment: The Question of Gender Bias in the
Provocation Defence – A Victorian Case Study’ in Norma Grieve and Alsa Burns (ed) Australian Women:
Contemporary Feminist Thought, Melbourne: Oxford University Press, 1994, 231.
6
Alison Wallace, Homicide: The Social Reality, Sydney: NSW Bureau of Crime Statistics and Research,
Attorney General's Department, 1986,99; Parker v R (1963) 111 CLR 610.
7
Jenny Morgan 'Provocation Law and Facts: Dead Women Tell No Tales, Tales are Told About Them' (1997)
21 Melbourne University Law Review 23.
8
[1978] UKHL 2.
9
Jackson (n 3) 517; Burke [1987] Crim LR 336.

1
However, to accept and apply these personal attributes uniformly to a reasonable person means
that jurors would be forced inevitably to make speculations and stereotypes on what amounts
to a reasonable characteristic of a person from a particular race or religion, or with any other
traits. Moreover, the narrower the characteristic is to be interpreted, the more subjective this
objective test becomes. The second limb of this defence, therefore, could be asserted as
attracting outcomes that are uncertain and unjust.

Criminal law acknowledges that humans lose control of themselves in response to actions of
others under certain circumstances, and the defence of provocation has emerged as a partial
defence to homicide as “a concession to human frailty”. 10 It is, nonetheless, a contentious
defence for it condones the provoked defendant to be less culpable in the eyes of the law and
holds the deceased victim partially responsible for his or her own death. Hence albeit it is
untroubled to see why a provoked killing is partially excusable, a scrutiny and reform
addressing the repercussions in the current local regime is a welcome development.

The information contained in this article is for general informational purposes only. No representation or
guarantee is given as to the accuracy, completeness or appropriateness of such information for use in any
particular circumstances. It does not represent the views of LexisNexis and does not constitute professional legal
advice. No responsibility for any loss occasioned to any person acting or refrain from acting as a result of the
contents of this article is accepted by LexisNexis. Please do not act upon any information contained herein
without first seeking a qualified legal practitioner on your specific matter.

10
R v Curtis (1756) 168 ER 67; Finbarr McAuley, “Anticipating the Past: The Defence of Provocation in Irish
Law” [1987] 50 M.L.R. 133.

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