HKSAR v. KONG KWONG SAN

CACC 135/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 135 OF 1998

(ON APPEAL FROM HCCC 246 OF 1997)

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D E C I S I O N

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Mayo, J.A. (giving the decision of the Court):

1. This is an application for a certificate pursuant to s.32 of the Court of Final Appeal Ordinance, Cap. 484.

2. We dismissed the Applicant's appeal against his conviction for murder on 29th January 1999.

3. Grounds 1 and 1A of the amended perfected grounds of appeal read:

"1. The Learned Trial Judge erred in law in failing to direct the Jury that on the issue of provocation they should consider:

(a) not only a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused but also a person in other respects sharing such of the accused's characteristics as they think would effect the gravity of the provocation to him, and/or

(b) personal history or other circumstances affected the gravity of the provocation on an ordinary man of the Applicant's age.

1A. The learned Trial Judge erred in failing to specifically direct the Jury to consider on the issue of provocation:

(a) the entire history prior to the events of 10th May,

(b) provocative words issued by persons other than the deceased."

4. For the reasons we gave in our judgment these grounds could not be sustained.

5. It is however apparent from the reasons we gave that there is a disparity of judicial opinion on the question of the form of directions which should be given by a judge to a jury when giving directions on provocation and where there is some evidence to the effect that the Accused may have some characteristic which may impact upon the gravity of the provocation complained of.

6. We accept that the requirements of s.32 have been satisfied and we certify that the following points of law are of great and general importance:

"Whether having regard to the resumption of sovereignty over Hong Kong by the Peoples Republic of China, the Court of Appeal erred in concluding that it was bound to follow the opinion of the Judicial committee of the Privy Council in Luc Thiet Thuan v. The Queen [1997] AC131 (at p145, per Lord Goff of Chievely).

and

Whether the Court of Appeal erred by failing to conclude that evidence of particular features and/or characteristics of the Applicant, including mental infirmity of the Applicant ['adjustment disorder'] was admissible in the assessment of whether the partial defence of provocation applied, as well as in the assessment of whether the partial defence of diminished responsibility applied, and in failing to conclude that the Jury should have been directed accordingly."