HKSAR v. LAU CHEONG AND ANOTHER

CACC 646/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 646 OF 1998

(ON APPEAL FROM HCCC 54 OF 1998)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 9 December 1998, the Applicants (D1 and D2 respectively) were convicted of murder, following a trial before V. Bokhary J and a jury. They were each sentenced to mandatory terms of imprisonment for life. They also faced a second count on the indictment which alleged robbery. D1 pleaded guilty to this count whereas D2 was convicted by the jury. They received concurrent sentences of six years and nine years' imprisonment respectively.

2. The Applicants sought leave to appeal against the convictions resulting from the jury's verdicts. On 21 March 2000, this court heard submissions on all except one of the grounds of appeal and, subject to argument on that ground, on 13 June 2000 we dismissed the applications. The factual background to this case is set out in that judgment.

3. The matter now comes before us for consideration of the fifth and last ground of appeal against conviction which Mr John Mullick, on behalf of D1, was unable, for reasons we shall come to later, to advance when the matter was last before this court.

4. Mr Haynes, on behalf of D2, in his amended perfected grounds of appeal dated 14 September 1999, had not included any ground which reflected Mr Mullick's fifth ground, but he indicated that he wished to adopt it.

5. The Applicants also sought leave out of time to appeal against their sentences of life imprisonment. As the ground of appeal raised an important issue of law, we granted leave to pursue this application out of time. This was not opposed by Mr Blanchflower, SC, on behalf of the Respondent.

Conviction appeal

6. In ground 5, relating to the conviction of D1, Mr Mullick complained that the judge had erred in law when she did not withdraw the murder count from the jury at the conclusion of the prosecution's case on the ground that:

"(1) for the prosecution to prove the common law offence of murder against (D1) .... it was necessary to adduce sufficient evidence that he either intended to kill the deceased or, at least, at the material time, he possessed the subjective foreseeability that death might result from his acts;

(2) proof of anything less was insufficient to prove the common law offence of murder;

(3) to proceed against (D1) on the basis that he could, in the absence of any intent to kill, be convicted of the offence of murder by proof only that he intended to inflict, or cause, grievous bodily harm to the deceased is contrary to Articles 28 and 87 of the Basic Law of the Hong Kong Special Administrative Region and Articles 5, 10 and 11 of the Hong Kong Bill of Rights (Ordinance), Cap. 383."

7. The reason that neither Mr Mullick nor Mr Haynes, after his adoption of the points in ground 5, could expand upon this ground before was that Mr Mullick, as well as Mr Bruce, SC, who was then appearing on behalf of the Respondent in this matter, were also instructed in HKSAR v Coady which is now reported at [2000] 2 HKC 12. In that case, effectively, the same points of law were being raised. It was therefore convenient to adjourn the proceedings in this matter until the points at issue had been determined in Coady.

8. The judgment in Coady was handed down on 18 May 2000. On the same day, Mr Haynes submitted a written argument "to take into account (the judgment) in HKSAR v Coady, CA 119/99 and (D2's) position as a secondary party". Mr Haynes was then seeking to distinguish the decision in Coady, which dealt only with the position of an alleged primary offender in murder, from that of a secondary offender.

9. Before this matter could be re-listed, the same points which Mr Haynes was seeking to raise on behalf of D2 were taken in HKSAR v Pun Ganga Chandra and Others which is now reported at [2001] 2 HKC 192. We shall return to this later.

D1's application

10. Mr Mullick's fifth ground, which we have already set out, was answered in full in Coady (above). In that case, it was decided that the mens rea of murder, which includes an intention to cause grievous bodily harm (the "grievous bodily harm rule"), did not offend Article 5(1) of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Bill of Rights). Article 5(1) is also reflected in Article 28 of the Basic Law which, so far as it is relevant, reads:

".... no Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment ...."

11. The court also found that the grievous bodily harm rule did not infringe Article 10 of the Bill of Rights which provides for equality before the courts and the right to a fair and public hearing. The court held that Article 10 did not relate to the substance of the criminal law but rather to its process.

12. Finally, so far as it is relevant to this aspect of these proceedings, the court in Coady found that the grievous bodily harm rule did not infringe the provision in Article 11 of the Bill of Rights which deals with the presumption of innocence.

13. Mr Mullick, on a previous occasion when this matter came before us for mention, very responsibly indicated that he considered that this court was bound by what had been said in Coady.

14. On 6 April 2001, when the judgment in Pun Ganga Chandra and Others (above) was handed down, the correctness of Mr Mullick's stance was further confirmed when this court followed Coady and stated (at p. 201):

".... 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".

15. It follows, therefore, that Mr Mullick's fifth ground, which he formally maintained in order to preserve a possible appeal to the Court of Final Appeal, must fail in respect of D1.

D2's application

16. Mr Haynes, by attempting to portray D2 as a "secondary party" to the murder in the present case has, as we have said, sought to distinguish D2's position from Coady which was only concerned with the law relating to a primary offender in murder.

17. However, as Mr Blanchflower has rightly pointed out, the case against D2 was that he acted as a principal with D1 in the murder and robbery of the victim in counts 1 and 2. The case was summed up on the basis that D2 assisted D1 in killing the victim although it may have been D1 who actually tied the rope around the victim's neck which directly caused his death.

18. D2 did not give evidence. He relied on D1's testimony in court and on D1's statement to the police to the effect that D2 had not been party to the offences. D1 had, in particular, testified that D2 had "fainted" after the robbery had been committed and before the victim was tied up.

19. The jury plainly did not accept D2's defence. The appeal proceeded on the basis that D1 and D2 were joint offenders engaged on a common purpose to rob and murder. In the judgment given on 13 June 2000, we said at one point (p. 13 J-L):

"Whether or not death or really serious injury was intended by D2, if and when he rendered assistance or encouragement to D1, was entirely a matter for the jury."

Later, we said that the judge's directions provided clear guidance to the jury as to the matters which the prosecution had to prove to establish D2's joint participation in the killing, if he had done anything at all. We went on to say (at p. 16F-I):

"The jury was entitled to reject, as they plainly did, D1's evidence that D2 had not played any part in tying up the victim after the robbery. Once the jury accepted that D2 had participated in tying the victim, physically or by encouragement, the sole issue to be determined was D2's intent at the time of doing so."

20. We do not accept Mr Haynes' contention that there is any basis upon which D2 should now be looked upon as a secondary offender who foresaw a risk that, at the very least, D1 might cause really serious bodily harm to the victim. In our view, what was said in Coady is binding upon D2.

21. However, even if we had come to a different conclusion in regard to D2, he would have been no better off because of what was said in Pun Ganga Chandra and Others (above). The law, so far as it relates to secondary offenders, was set out in the judgment at p. 202:

"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."

When this court considered the alleged violation of Article 5(1) of the Bill of Rights which, amongst other things, provides that "no one shall be subjected to arbitrary arrest or detention", it was held (at p. 207) that the secondary offender rule did not infringe this Article.

22. In Pun Ganga Chandra and Others, it was not contended that the secondary offender rule violated Article 11 of the Bill of Rights (the presumption of innocence). However, it is plain that the liability of secondary offenders is not inconsistent with Article 11(1). In Pun Ganga Chandra and Others, the court (at p. 202-203) set out the three matters which had to be proved before a secondary offender could be found guilty of murder committed by the principal (or primary) offender:

"(i) The primary offender must himself have been guilty of murder. He must, therefore, have intended either to kill the deceased or to cause him really serious bodily injury.

(ii) Actual foresight on the part of the secondary offender is required. It is not enough for the prosecution to prove that the secondary offender ought to have realised what the primary offender might do. The prosecution has to prove that the secondary offender actually realised what the primary offender might do, and continued to participate in the joint enterprise with that foresight.

(iii) What the primary offender might do has to have been foreseen by the secondary offender as a real possibility. Thus, the secondary offender has to have realised that there was a real risk that the primary offender might attack the deceased with the intention of either killing him or causing him really serious bodily injury."

23. Mr Haynes, who adopted his written submission as Mr Mullick had also done, submitted that although what was said in Pun Ganga Chandra and Others represented what has been the law applicable to secondary offenders for some time, the law should require proof of an actual intention to kill or to cause grievous bodily harm. He contended that because it does not, this somehow amounted to a violation of the presumption of innocence.

24. In our opinion, there was no basis upon which to find a breach of the right guaranteed by Article 11(1) of the Bill of Rights. D2's ground of appeal in this regard therefore fails.

Conclusion - Conviction

25. The appeals of D1 and D2, based upon the matter of law raised in Mr Mullick's fifth ground of appeal to which the present hearing was confined, are dismissed.

Sentence application

26. Mr Mullick's perfected grounds of appeal against sentence in November 2000 raised several matters of law which have, with the exception of ground 1(ii), already been answered by the judgment given in Pun Ganga Chandra and Others [2001] 2 HKC 192.

27. Mr Haynes, in his perfected grounds of appeal dated 5 December 2000, adopted Mr Mullick's grounds although he went on to raise other grounds on sentence which were applicable to a secondary offender in the crime of murder. This further aspect to his grounds has also been resolved in Pun Ganga Chandra and Others. In that case it was held that the mandatory sentence of life imprisonment for those convicted of murder, whether as primary or secondary offenders, neither offended against Article 5(1) of the Bill of Rights nor Articles 25 or 28 of the Basic Law.

28. Accordingly, we need say no more about the grounds of appeal where the arguments which were to have been advanced in the present case do no more than rehearse what was said in Pun Ganga Chandra and Others. We are bound, as counsel accepted, by what was stated in that case. We should perhaps add, however, that section 6(3) of the Bill of Rights, which was briefly touched upon in counsels' submissions under ground 1(ii), was not addressed in Pun Ganga Chandra and Others. We need only say that it is a provision which gives a direction as to the administration of the penitentiary system and, as such, in our opinion has no relevance to the issue presently before us.

29. Under ground 1(ii) Mr Mullick submitted that section 83G of the Criminal Procedure Ordinance, Cap. 221, was inconsistent with Articles 5(1)(, 5(4), 6(3), 10 and 11(4) of the Bill of Rights. Section 83G provides:

"A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence, whether passed on his conviction or in subsequent proceedings."

30. The precursor to section 83G is section 9 of the Criminal Appeal Act 1968 in England which is in identical terms. Section 9 was enacted three years after Parliament enacted the Murder (Abolition of Death Penalty) Act 1965. Section 1(1) of that Act made provision for a mandatory life sentence following conviction for murder.

31. Mr Blanchflower, to whom we are indebted for his careful analysis of the position in Hong Kong, pointed out that section 83G was enacted as part of the Criminal Procedure (Amendment) (No. 2) Ordinance, 1972. The 1972 Ordinance, following the 1968 Act in England, amended large parts of the Criminal Procedure Ordinance, including parts relating to appeals. The explanatory memorandum to the Criminal Procedure (Amendment) (No. 2) Bill 1972 states (amongst other things):

"The main object of this Bill is to bring the law of Hong Kong into line with that of the United Kingdom in relation to -

...........

(b) appeals to the Full Court in criminal cases."

32. In Pun Ganga Chandra and Others (above) this Court addressed the appellants' sentence appeals which principally contended that the mandatory sentences of life imprisonment were arbitrary and therefore inconsistent with their rights under Article 28 of the Basic Law and Article 5(1) of the Bill of Rights. The Court (at p. 196) granted leave to appeal although the application of section 83G of the Criminal Procedure Ordinance (set out above), and the possible jurisdictional problem to which it gives rise, was not raised. It is now submitted that section 83G is inconsistent with Article 11(4) of the Bill of Rights which states that:

"Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law."

33. Section 83G was enacted in 1972. The Bill of Rights Ordinance came into operation on 8 June 1991. The Legislature could not, we believe, have intended Article 11(4), in view of its plain and unambiguous wording, to be subject to section 83G. It follows, therefore, that section 83G cannot limit the application of Article 11(4) of the Bill of Rights.

34. In practical terms, the English Court of Appeal, in R v Lichniak; R v Pyrah, 2 May 2001 (unreported) considered the same point which is being made in the matter presently before us. In that case, the appellants sought judicial review of decisions to impose mandatory sentences of life imprisonment following their separate convictions for murder. They alleged that section 1 of the Murder (Abolition of Death Penalty) Act 1965 (similar to section 2 of the Offences Against the Person Ordinance, Cap. 212) was incompatible with Article 3 (torture or inhuman or degrading treatment) and Article 5 (deprivation of liberty determined by a competent court in accordance with a procedure prescribed by law). For the hearing of the application for judicial review, the Queen's Bench Division sat both as the Divisional Court and as the Court of Appeal Criminal Division.

35. Before concluding that mandatory life sentences were not in breach of Articles 3 or 5 of the European Convention on Human Rights and Fundamental Freedoms, Kennedy LJ, delivering the judgment of the Court of Appeal, first addressed the apparent jurisdictional obstacle raised by section 9(1) of the Criminal Appeal Act 1968, which (in the same terms as section 83G of the Criminal Procedure Ordinance) provides:

"A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence ...."

Kennedy LJ said at pp. 5-6:

"For present purposes we are satisfied that the most attractive route to jurisdiction is to have resort to section 3(1) of the 1998 (Human Rights) Act which requires us to read and give effect to section 9(1) of the 1968 Act in a way which is compatible with Convention rights. If a statutory provision which requires the imposition of a sentence of life imprisonment is incompatible with the Convention then, at least until Parliament has had the opportunity to consider its response to the court's declaration of incompatibility, the sentence is not for the purposes of section 9(1) of the 1968 Act fixed by law; alternatively the exclusion of sentences fixed by law is itself subject to an implied exception where the statutory provision fixing the sentence is incompatible with the Convention. Accordingly we hold that this court, sitting as a division of the Court of Appeal, has jurisdiction to entertain these matters as appeals against sentence, since they raise arguable issues as to the compatibility of section 1 of the 1965 Act with the Convention."

36. Mr Blanchflower invited the court to say that, taking a similar route to that which the English court adopted, we should find that we have jurisdiction, pursuant to Article 11(4) of the Bill of Rights, to entertain the applications before us for leave to appeal against sentence. This, we propose to do.

37. We can, however, deal with the matter shortly. In doing so, we again express our gratitude to Mr Blanchflower for his careful research into the existing procedures for the review of long-term prison sentences. In particular, the Long-Term Prison Sentences Review Ordinance, Cap. 524, came into operation in June 1997 which the relevant part of the preamble states is:

"An Ordinance to establish a board to review indeterminate and long-term prison sentences ...."

38. Under the terms of section 6, the Board of Review of not less than eight members is appointed by the Chief Executive. Two of its members must be judges or former judges of the Court of First Instance. The principal function of the Board (section 7) is to conduct reviews of long-term sentences. When exercising its functions, the Board must have primary regard to the principles listed in section 8 which include:

"(c) whether the part of the prisoner's sentence already served is sufficient, in all the circumstances (in particular given the nature of the offence for which the prisoner is being detained), to warrant consideration being given to having the prisoner released from detention early."

39. With respect to mandatory life sentences, the Board must first review the sentence after five years from the start of the sentence, and as soon as practicable after each subsequent second anniversary after that date. (section 11(2))

40. Schedule 1 to the Long-Term Sentences Review Regulations lists matters the Board may take into account although the Board may also take into account any other matters it thinks relevant. Schedule 1 includes such matters as the nature of the offence, any mitigating circumstances, the prisoner's response to counselling and rehabilitative treatment, the prisoner's age and state of health and the prisoner's rehabilitation prospects and employment prospects on release. It would appear to follow, therefore, that a prisoner's role in a murder is taken into account, as well as the way he has responded in prison.

41. Before the date of review the prisoner is provided with a copy of all the relevant material considered by the Board (section 13(2), unless the material comes within an excepted category. The Board may request information from the Commissioner of Correctional Services [section 14(1)(a)]; Commissioner of Police [section 14(1)(b)], Registrar of the High Court [section 14(1)(c)] and Director of Social Welfare [section 14(1)(d)]. The Registrar of the High Court must provide information relating to the offence and trial [section 14(1)(c)(i)] and a copy of the report made under section 67B of the Criminal Procedure Ordinance [section 14(1)(c)(ii)].

42. The prisoner is given an opportunity to make written representations to the Board with respect to matters relevant to the review. The Board has the discretion to allow the prisoner to appear before it, either personally or through his representative, to be heard and to make oral representations and adduce evidence to the Board. [section 12(5)]

43. The Board may recommend to the Chief Executive to substitute a determinate sentence for a prisoner's indeterminate sentence. [section 15(1)(a)(ii)]. If the Chief Executive acts upon the Board's recommendation he will exercise his power under Article 48(12) of the Basic Law: "To pardon persons convicted of criminal offences or commute their penalties". The Board may also make a conditional release order for a period of up to 2 years for a prisoner serving an indeterminate sentence. [section 15(1)(b)]

44. Whilst we are satisfied that a right to review of sentence exists under Article 11(4) of the Hong Kong Bill of Rights, even where the sentence is fixed by law, for all the reasons given in Pun Ganga Chandra and Others (above) which it is unnecessary to set out again, and for the additional reasons given in this judgment which demonstrate that an adequate system for the review of long-term prisoners' sentences is in existence, we are satisfied that neither the Bill of Rights nor the Basic Law have been breached by the imposition of these mandatory life sentences.

Conclusion - Sentence

45. We shall give leave to appeal to D1 and D2 against sentence but their appeals are dismissed.