HKSAR v. PUN GANGA CHANDRA AND OTHERS

CACC 309/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 309 OF 1999

(ON APPEAL FROM HCCC NO. 259 OF 1998)

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J U D G M E N T

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Keith JA (giving the judgment of the Court):

Introduction

1. In the early hours of 8 December 1997, an argument broke out between a group of men outside a bar in Wan Chai. In the course of that argument, a young man was stabbed. He died as a result of his injuries. Three men were eventually charged with his murder. They were tried by Gall J and a jury in the Court of First Instance. They pleaded not guilty. However, after a trial lasting a number of weeks, they were convicted and sentenced to imprisonment for life. They now appeal against their convictions and sentences.

2. In his summing-up to the jury, the judge gave the jury the conventional directions on the mens rea required before a person can be convicted of murder. The correctness of these directions is challenged on this appeal. They are said to be inconsistent with the Basic Law and the Bill of Rights. Since this argument involves questions of law alone, leave to appeal against conviction is unnecessary. But this appeal raises another far-reaching question. That is the compatibility of the mandatory sentence of life imprisonment for murder with the Basic Law and the Bill of Rights. Such a sentence - which has to be imposed regardless of differences in the degree of culpability and mitigating circumstances - is also said to be inconsistent with the Basic Law and the Bill of Rights. All appeals against sentence require the leave of the court (see section 83I(1) of the Criminal Procedure Ordinance (Cap. 221)), even if they raise a question of law alone, and we readily give leave in the present case. We trust that we shall be forgiven for the impersonal way we propose to refer to the Appellants, but for convenience we shall refer to them as A1, A2 and A3 respectively.

The prosecution's case

3. It is unnecessary to go into the facts in any detail, but it is important to put the judge's directions into their proper context. The evidence against the Appellants consisted of (a) various witnesses who saw the Appellants fighting with the deceased and saw a knife used by one of them to stab the deceased, and (b) the answers given by two of the Appellants when they were interviewed by the police. Both in those interviews and in the evidence which all three of them gave at the trial, the Appellants gave their own versions of what had happened and of the respective roles which they had played.

4. It was accepted by the prosecution that not all of the Appellants had stabbed the deceased. Indeed, only one of them could have inflicted the fatal stab wound to the back of the deceased's neck. The prosecution's case was that A1 and A3 had knives, and that one or other of them had inflicted the wound from which the deceased had died. One or other of them was therefore said to have been what we propose to call the primary offender. But if the jury was not sure which of them had inflicted the fatal wound, the prosecution's case was that A1 and A3, as well as A2, should be convicted of murder on the basis that they were all parties to the fatal stabbing of the deceased. Thus, those of the Appellants who the jury was not sure had inflicted the fatal wound were said to have been what we propose to call secondary offenders.

Primary liability

5. The conventional direction. The conventional direction when a defendant charged with murder is alleged to have been a primary offender is that the jury can only convict the defendant of murder if it is sure

This latter direction has come to be known as the "grievous harm" rule. Under that rule, a person can be convicted of murder even if he did not intend to kill his victim. For a person to be convicted of murder, it is sufficient if he intended to cause his victim grievous bodily harm, i.e. really serious bodily injury.

6. The judge's ruling. At the conclusion of the evidence, counsel for the Appellants applied to the judge for a ruling that the "grievous harm" rule was inconsistent with the rights protected by Art. 28 of the Basic Law and Art. 5(1) of the Bill of Rights. The relevant sentence in Art. 28 of the Basic Law reads:

And Art. 5(1) of the Bill of Rights provides:

The "grievous harm" rule was said to infringe these rights for two reasons. First, a person could only be deprived of his liberty as a result of the application of laws which were not arbitrary. Detention and imprisonment as a result of a conviction following a breach of laws which are themselves arbitrary were said to be just as arbitrary. Secondly, imprisonment for life is the mandatory sentence on conviction for murder: see section 2 of the Offences Against the Person Ordinance (Cap. 212). Since the sentence is mandatory whatever the defendant's degree of criminal culpability, the defendant's detention for life following his conviction for murder based on the "grievous harm" rule was said to be arbitrary for that reason as well. Accordingly, the judge was pressed to direct the jury that what had to be proved in relation to any of the Appellants who the jury was sure had inflicted the fatal stab wound was that that Appellant had either intended to kill the deceased or had known that his actions were likely to endanger the deceased's life.

7. That formulation of the only permissible alternative to an intention to kill was considered and rejected by the House of Lords in Hyam v. Director of Public Prosecutions [1975] AC 55 and in R v. Cunningham [1982] AC 566, although there were dissenting speeches in Hyam and other judges (for example, Lord Edmund-Davies in Cunningham) only concurred in the result because they believed that so fundamental a change in the common law - which the adoption of this formulation would produce - could only be effected by legislation. Understandably, Gall J did not address what he thought the common law should be. He confined himself to considering whether the "grievous harm" rule was inconsistent with either the Basic Law or the Bill of Rights. He ruled that it was not. His ruling is reported at [1999] 2 HKLRD 648. He therefore gave the jury the conventional direction in accordance with the "grievous harm" rule.

8. The Coady case. There have been three other cases in Hong Kong in which the "grievous harm" rule has been challenged at first instance: HKSAR v. Chan Chui Mei [1999] 3 HKC 502 (Nguyen J), HKSAR v. Mok Tsan Ping (HCCC 427/98) (Verina Bokhary J) and HKSAR v. Yik Po Man (HCCC 251/99) (Beeson J). In each of these cases, the challenge failed. Eventually, the issue was considered by the Court of Appeal in HKSAR v. Coady (No. 1) [2000] 2 HKLRD 195. Following an examination of the relevant authorities, the Court of Appeal held that the "grievous harm" rule was not inconsistent with Art. 5 of the Bill of Rights nor with any of the other provisions of the Basic Law or the International Covenant on Civil and Political Rights on which reliance had been placed.

9. Mr Desmond Keane SC for the Appellants pointed out that this conclusion in Coady was not binding upon us because the appeal was subsequently allowed on other grounds. However, he realistically accepted that the court might not wish to revisit the issue so soon after Coady. Accordingly, he did not develop any submissions on the basis that Coady was wrongly decided. He simply reserved his right to argue the correctness of Coady elsewhere.

10. In Coady, the court set out what it believed to be the parameters of its inquiry. At pp. 201I-202C, it said:

That had been Gall J's approach, and we have no doubt that it was the correct one.

11. Although we do not think it appropriate to revisit the issue so soon after Coady, it would, we think, be helpful - in view of the other arguments which we must address - to bear in mind how the court in Coady reached its conclusions on the two arguments deployed before Gall J. The court was inclined to the view that Art. 5(1) of the Bill of Rights merely permitted judicial scrutiny of laws relating to arrest and detention, and provided procedural guarantees for the fair and lawful operation of those laws. The court was sceptical as to whether Art. 5(1) permitted the court to scrutinise for arbitrariness other laws, i.e. those which resulted in the arrest and detention of persons who broke them. However, the court did not reach a concluded view on the reach of Art. 5(1) because, even if Art. 5(1) permitted the court to scrutinise for arbitrariness laws which resulted in the arrest and detention of persons who broke them, the "grievous harm" rule was not arbitrary since it could be objectively justified. The court said at pp.207B-208A:

12. As for the argument based on the arbitrary nature of detention for life, the court said at pp. 202H-203A:

13. Equality before the law. Finally, in his skeleton argument, Mr Keane argued that the "grievous harm" rule infringes Art. 25 of the Basic Law, which provides:

Residents of Hong Kong are said not to be equal before the law if persons with different intentions, i.e. those who intend to kill and those who intend merely to cause really serious bodily injury can be convicted of the same crime. A not dissimilar argument was deployed in Coady, though in the context of Art. 10 of the Bill of Rights, the first sentence of which provides:

In Coady, the argument was rejected, inter alia, on the basis that Art. 10 does not relate to the substance of the criminal law. It relates to the criminal process. It provides guarantees for a fair trial and requires all persons involved in the criminal process to be treated in terms of procedure on terms of equality.

14. In our opinion, Art. 25 of the Basic Law focuses on something different. It is directed towards discriminatory treatment under the law. Its counterpart in the Bill of Rights is not Art. 10, but Art. 22 which provides:

Since the "grievous harm" rule applies to all Hong Kong residents charged with murder, no question of the "grievous harm" rule infringing Art. 25 of the Basic Law can arise.

15. Conclusion. For these reasons, we are not prepared to depart from what was decided in Coady. It follows that the "grievous harm" rule, in its application to a person charged with murder who is alleged to be a primary offender, is neither inconsistent nor incompatible with the rights protected by the Basic Law and the Bill of Rights.

Secondary liability

16. The prosecution's case. A2 was not alleged by the prosecution to have had a knife. Since he could not have inflicted the fatal stab wound to the deceased, he could not have been a primary offender. His conviction for murder could only be sustained on the basis of secondary liability for the murder of the deceased. The same is true of both A1 and A3 if the jury was not sure which of them had inflicted the fatal stab wound to the deceased.

17. The prosecution's case on secondary liability was based on the doctrine of joint enterprise. This was entirely in accordance with the principle which governs liability of secondary offenders. As Lord Mustill said in Powell at p. 10F:

But the liability of a secondary offender for the crimes of the primary offender is not limited to crimes to which the joint enterprise related. The liability of the secondary offender for the crimes of the primary offender can include other crimes as well. A secondary offender can be liable for a crime committed by the primary offender even though the joint enterprise did not relate to such a crime, provided that the secondary offender realised that there was a real risk that, in carrying out the joint enterprise to commit the crime to which the joint enterprise related, the primary offender might commit that other crime. As was said by Sir Robin Cooke (as he then was) in Chan Wing Siu v. R [1985] 1 AC 168 (an appeal to the Privy Council from Hong Kong) at p. 175H:

The principle was pithily expressed by Lord Hutton in Powell at p. 21E-F:

18. Nevertheless, the authorities show that the circumstances in which a secondary offender can be liable for a murder committed by the primary offender in the course of a joint enterprise in which the death of the deceased or really serious bodily injury to him was not the intention or aim of the joint enterprise are very limited. In particular, three matters have to be established before the secondary offender can be liable for a murder committed by the primary offender:

19. In the present case, the prosecution's case was that the three Appellants had been parties to a joint enterprise to attack the deceased. In the course of carrying out that joint enterprise, one of the Appellants had inflicted the fatal wound from which the deceased had died. If, in carrying out the attack, the Appellant who had inflicted the fatal stab wound had intended either to kill the deceased or to cause him really serious bodily injury, that Appellant would be guilty of murder as the primary offender. But the other Appellants would also be liable for his murder as secondary offenders if they had realised that there was a real risk that one of them, in the course of carrying out the attack to which the joint enterprise related, might attack the deceased with the intention of either killing him or causing him really serious bodily injury, and had continued to participate in the joint venture with that realisation.

20. The judge's directions. Gall J purported to direct the jury in accordance with these principles. Having given the jury the conventional direction based on the "grievous harm" rule, i.e. the direction which applied to any of the Appellants who the jury was sure had inflicted the fatal stab wound, Gall J turned to joint enterprise. He said:

After giving an illustration of how the principle worked in practice to render a secondary offender liable for the crimes of the primary offender, Gall J went on to explain what the position would be if the primary offender went outside the plan to which the joint enterprise related. He said:

After giving an illustration of how that would prevent a secondary offender from being liable for the crimes of the primary offender, Gall J summarised what the prosecution had to prove against each Appellant if they were to be convicted of murder on the basis of secondary liability. He said:

This direction was based on the assumption that the jury was sure that the Appellant whose case the jury was considering knew that another Appellant had a knife. Gall J then went on to deal with the position if the jury was not sure of that. He said:

21. The "secondary offender" rule. It is not suggested that Gall J's directions did not constitute proper directions to the jury on the liability for the murder of the deceased at common law of those of the Appellants who had not inflicted the fatal stab wound. We shall return to that concession later. What is said, however, is that the common law relating to the liability of secondary offenders for murder is inconsistent with the rights protected by Art. 5(1) of the Bill of Rights and Art. 28 of the Basic Law. That issue was expressly left open in Coady: see p. 213F. For convenience, we shall refer to the common law relating to the liability of secondary offenders for murder as the "secondary offender" rule.

22. The "secondary offender" rule is said to infringe

The grounds are the same as the grounds for attacking the "grievous harm" rule, namely that the "secondary offender" rule itself is arbitrary as is mandatory punishment of imprisonment for life for a secondary offender whatever the degree of his criminal culpability. For the reasons given in Coady, the latter argument goes to the appeal against sentence, and we shall return to it later. As for the argument that the "secondary offender" rule itself is arbitrary, we remain sceptical as to whether Art. 5(1) of the Bill of Rights and Art. 28 of the Basic Law permit the court to scrutinise for arbitrariness laws which result in the detention or imprisonment of persons who break them, but as in Coady we propose to address the issue on its merits.

23. The "secondary offender" rule contains elements of the "grievous harm" rule: the foresight required of the secondary offender is foresight that the primary offender might have attacked the deceased with the intention of either killing him or causing him really serious bodily injury. It was submitted to Gall J that the "secondary offender" rule is arbitrary because it reproduces the arbitrariness of the "grievous harm" rule. Gall J rejected that argument, and we reject it as well, standing as we do by what was said in Coady. It is to another criticism of the "secondary offender" rule that we now turn. That criticism was summarised by Lord Steyn in Powell at p. 14C-D as follows:

Lord Steyn then proceeded to address this supposed anomaly at p. 14E-G:

24. Lord Hutton took a similar view in Powell. He recognised at p. 25F-G that "on one view it is anomalous that if foreseeability of death or really serious harm is not sufficient to constitute mens rea for murder in the party who actually carries out the killing, it is sufficient to constitute mens rea in a secondary party". He then went on to identify at pp. 25G-26D "the practical considerations of weight and importance related to considerations of public policy which justify" the secondary offender rule. They included the following:

25. Conclusion. These considerations convince us that the "secondary offender" rule cannot be said to be arbitrary - whether the term "arbitrary" means something which cannot be objectively justified or whether it has some other meaning. As was said in Coady when addressing the supposed arbitrariness of the "grievous harm" rule, it is unnecessary for us to declare where we stand in the debate. It is sufficient for us to state that the "secondary offender" rule represents a respectable view as to what the law of murder should embrace, even though views may differ on the topic, and even if it results in a different mens rea being required for primary and secondary offenders. For these reasons, we have concluded that the "secondary offender" rule does not infringe Art. 5(1) of the Bill of Rights or Art. 28 of the Basic Law.

The mandatory sentence of imprisonment for life

26. The history of the punishment for murder. Until 1993, murder was a capital offence in Hong Kong: the death penalty was the only punishment for murder recognised by law. However, under the Letters Patent, the Governor had the power to remit a sentence passed on an offender. Thus, he had the power to commute sentences of death to imprisonment for life or to imprisonment for a fixed term. The last execution took place in 1966. Since then the Governor always (save for one occasion in 1973) commuted sentences of death to ones of imprisonment. On the one occasion when he did not, the prisoner petitioned the Queen, and on the advice of the Secretary of State for Foreign Affairs the sentence was commuted to one of life imprisonment.

27. In 1991, the Legislative Council voted in favour of introducing legislative measures which would abolish the death penalty for all crimes for which the death penalty was the only sentence (i.e. treason and piracy with violence as well as murder) and would replace the death penalty with a mandatory sentence of life imprisonment, leaving it to the Governor to decide, pursuant to his powers under the Letters Patent, to determine when the prisoner should be released. The issue was further debated, on the resumed second reading of the Bill which would effect these changes, and a spectrum of different views was expressed. In addition, the views of interested bodies were relayed to members. Both the Hong Kong Bar Association and the Law Society of Hong Kong considered that the death penalty should be abolished. In relation to the offence of murder, they differed only as to whether life imprisonment should be the only sentence or the maximum sentence, the Bar Association favouring the former and the Law Society favouring the latter. The Hong Kong Citizens' Alliance, on the other hand, opposed the abolition of capital punishment.

28. In due course, the proposal to make life imprisonment the mandatory sentence for murder was passed, and section 2 of the Offences Against the Person Ordinance was amended to reflect that. One of the considerations which plainly influenced members was the existence of the Board of Review of Long-Term Prison Sentences. Its function was to review the sentences of long-term prisoners (including offenders serving commuted life or fixed terms of imprisonment for murder) and to tender advice to the Governor as to when they should be released. Since 1997, the Board of Review's functions have been governed by statute - the Long-Term Prison Sentences Review Ordinance (Cap. 524). Thus, in making its recommendations to the Chief Executive in Council as to when persons serving life imprisonment for murder should be released, the Board of Review is required, by section 8(c), to have regard to:

29. The Appellants' argument. The mandatory sentence of life imprisonment for murder is said to infringe the rights protected by Art. 5(1) of the Bill of Rights and Art. 28 of the Basic Law on the ground that the detention and imprisonment which it mandates for all persons convicted of murder is arbitrary. That is because it prevents the judge who has to sentence a person convicted of murder from passing what in his view the appropriate sentence for the crime is. He is disabled from reflecting in his sentence the true nature of the offender's crime, the degree of the offender's culpability and any mitigating or aggravating circumstances. That is particularly pernicious, so it is said, in a system in which the definition of murder is wide enough to bring within its ambit offenders at different extremes of the moral spectrum. As was said in Coady at pp. 208J-209A to illustrate the wide range of persons whose acts of homicide come within the "grievous harm" rule:

30. The view of the legislature. It is important not to lose sight of the fact that it was the legislature which decided that life sentences for murder should be mandatory and that the legislature came to that view following a full debate on the topic at which the arguments in favour of and in opposition to a mandatory as opposed to a maximum sentence were fully canvassed. The decision to abolish the death penalty but to make imprisonment for life the mandatory sentence for murder thus represented the legislature's view as to where the balance should be struck between the rights of the individual and the need to protect society as a whole. As Lord Woolf said in Attorney-General of Hong Kong v. Lee Kwong Kut [1993] 2 HKCLR 186 at p. 202:

31. The view that the courts should give due weight to the views of the legislature on issues of policy when considering international human rights instruments has recently been established in European jurisprudence. In R v. Director of Public Prosecutions ex p. Kebilene [2000] 2 AC 326, Lord Hope of Craighead referred at p. 380E to the acknowledgment by the European Court of Human Rights

But as Lord Steyn pointed out in Procurator Fiscal, Dunfermline v. Brown (Privy Council appeal, no. DRA 3/2000) at p. 40:

Lord Steyn went on to observe that this point was well explained in Lester and Pannick, "Human Rights Law and Practice", 1999, p. 74:

Lord Bingham of Cornhill made the same point at p. 28:

32. The need for domestic courts to give weight to the views of the legislature on matters of policy received its most articulate expression in Lord Hope's speech in Kebilene. At pp. 380G-381B, he said:

The court was concerned, of course, with the European Convention for the Protection of Human Rights and Fundamental Freedoms as incorporated into English domestic law by the Human Rights Act 1998. We take this opportunity to declare that, in our view, similar considerations apply to the International Covenant on Civil and Political Rights as applied to Hong Kong by the Bill of Rights.

33. In the course of the debate on the resumed second reading of the Bill which would abolish capital punishment, Mr Simon Ip said:

Despite these powerful arguments, the Legislative Council decided that life imprisonment should be the mandatory sentence for murder. For the reasons we have given, we believe that we should give due weight to the concluded view of the majority of the members of the Legislative Council who came to that conclusion.

34. The punitive nature of the mandatory sentence of life imprisonment for murder. The mandatory sentence of life imprisonment for murder serves a different purpose from a discretionary sentence of life imprisonment, in which life imprisonment is the maximum, rather than the only, sentence for a particular offence. A discretionary sentence of life imprisonment was described by the European Court of Human Rights in Wynne v. United Kingdom (1994) 19 EHRR 333 at para. 33 as having a "protective" purpose. It is intended to take into account "the presence of factors which are susceptible to change with the passage of time, namely mental instability and dangerousness". The mandatory sentence, on the other hand, was described in Wynne as "essentially punitive in nature", and is imposed because of the inherent gravity of the offence. It reflects society's denunciation of the crime of murder and the belief that murder is an offence of such gravity that the offender "forfeits his liberty to the state for the rest of his days" (Hansard, House of Commons Debates, 16 July 1991, col. 309)

35. In Wynne, the court was concerned with the provision in the European Convention equivalent to the procedural guarantees given by Art. 5(4) of the Bill of Rights. The question whether the mandatory sentence of life imprisonment constituted arbitrary detention in the context of the equivalent to Art. 5(1) of the Bill of Rights was not addressed. But that question was considered by the Supreme Court of Canada in R v. Luxton (1990) 58 CCC (3d) 449. In that case, the court had to decide whether the provisions of the Criminal Code which provided for the mandatory imposition of life imprisonment without eligibility for parole for 25 years for a person convicted of first-degree murder conflicted with various rights guaranteed by the Charter of Rights and Freedoms: section 7 (fundamental justice), section 9 (arbitrary detention or imprisonment) and section 12 (cruel and unusual punishment). The court found that none of these rights had been infringed.

36. In considering whether a mandatory sentence of life imprisonment offended principles of fundamental justice, the court accepted that there were some crimes for which a punitive sentence may be appropriate. Thus, at p. 457c-d, Lamer CJC acknowledged "that a sentencing scheme must exhibit a proportionality to the seriousness of the offence, or to put it another way, there must be a gradation of punishments according to the malignity of the offences." However, he also recognised at p. 457d that "a sentencing scheme also must take into account other factors that are of significance for the societal interest in punishing wrongdoers." He then went on to cite with approval what La Forest J had said in R v. Lyons (1987) 37 CCC (3d) 1 at p. 22:

We agree with these statements of principle which recognise that there may be some crimes for which it is open to the legislature to conclude that sentences with a predominantly punitive element are appropriate.

37. The supposed arbitrariness of the mandatory sentence. Lamer CJC then addressed the argument that the mandatory sentence of life imprisonment for first-degree murder constituted arbitrary detention or imprisonment. He said that the Appellant's argument was that it was arbitrary to impose "a mandatory term of imprisonment by statute for an offence that encompasses a range of moral turpitude" (p. 458d-e). That is the Appellants' argument in the present case. Lamer CJC concluded at p. 459c that the mandatory term of imprisonment for life without eligibility for parole for 25 years did not amount to arbitrary detention or imprisonment because "[t]he incarceration is statutorily authorized, it narrowly defines a class of offenders with respect to whom the punishment will be invoked and it prescribes quite specifically the conditions under which an offender may be found guilty of first degree murder." We agree with the Supreme Court of Canada that if a mandatory sentence of life imprisonment satisfies these criteria, it cannot be said to amount to arbitrary detention or imprisonment.

38. The law of murder in Hong Kong does not distinguish between first-degree murder, second-degree murder and so forth. What our law does is to distinguish between certain forms of homicide, categorising some as murder and others as manslaughter. We have already referred to the fact that mandatory sentences of life imprisonment have been authorised by statute, and we believe that the class of offenders who come within the category of murder is both sufficiently clearly and narrowly defined to satisfy the criteria referred to in Luxton. That applies to both primary and secondary offenders. The "grievous harm" rule catches only those primary offenders who intend to cause their victims really serious bodily injury at the very least, and there is much to be said for the view (adopting the language of Lord Edmund-Davies in Cunningham at p. 583A) that the outcome of intentionally inflicting really serious bodily injury can be so unpredictable that anyone prepared to act in so shocking a manner has little ground for complaining if, where death results, he forfeits his liberty for the rest of his life.

39. As for secondary offenders, the "secondary offender" rule catches only those secondary offenders who participate in a joint enterprise to cause really serious bodily injury to the deceased, or (in the case of a joint enterprise in which the death of the deceased or really serious bodily injury to him was not its aim) the "secondary offender" rule catches only those secondary offenders who participate in the joint enterprise realising that there was a real risk that the primary offender would attack the deceased with the intention of either killing him or causing him really serious bodily injury. That brings within a very clear and narrow band those secondary offenders who can be convicted of murder. Again, there is much to be said for the view (adopting the language of Lord Steyn in Powell at p. 14E) that it is just that a secondary offender who realises that there is a real chance that the primary offender might kill with the intention sufficient for murder, but nevertheless assists or encourages the primary offender in the criminal enterprise with that foresight, should forfeit his liberty for the rest of his life.

40. Finally, we bear in mind that, with the placing of the Board of Review on a statutory footing, the Legislative Council has ensured that there is machinery in place for an independent review of the actual length of an offender's detention. To adopt the language of Lamer CJC in Luxton at p. 457a-b:

For all these reasons, therefore, we are unable to say that the mandatory sentence of life imprisonment for murder amounts to arbitrary detention or imprisonment contrary to Art. 5(1) of the Bill of Rights and Art. 28 of the Basic Law.

41. Equality before the law. The mandatory sentence of life imprisonment for murder is also said to infringe the right of equality before the law protected by Art. 25 of the Basic Law. Residents of Hong Kong are said not to be equal before the law if persons of different degrees of culpability have to be sentenced in the same way. We reject this argument for the same reason as we rejected the reliance placed on Art. 25 to attack the "grievous harm" rule. Given the fact that all residents of Hong Kong have to be sentenced to life imprisonment if they are convicted of murder, no question of the mandatory sentence of life imprisonment for murder infringing Art. 25 of the Basic Law arises.

Conclusion

42. We have in this judgment dealt with the wider issues which this appeal has raised. To that extent, those issues have been disposed of. However, earlier in this judgment we said that we would be returning to the concession that Gall J's directions constituted proper directions to the jury on the liability for the murder of the deceased at common law of those of the Appellants who had not inflicted the fatal stab wound. At least one member of the court has some reservations about the particular terms of those directions, and we wish to hear further argument on the topic before finally disposing of the appeal. We are notifying the Director of Legal Aid and the Department of Justice of those reservations. Accordingly, the course which we propose to take for the time being is simply to direct that this appeal be re-listed for hearing on a date to be fixed after consultation with counsel's diaries for the parties to make such representations to us as they wish on the areas on which they will have been notified.