HKSAR v. WONG HING PIU, JAYSON

CACC 189/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 189 OF 2001

(ON APPEAL FROM HCCC 393 OF 2000)

____________________

____________________

_____________________

J U D G M E N T

_____________________

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

1. This is a very late application which is brought under the provisions of section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, for a certificate that a point of law of great and general importance was involved in the judgment given by this court on 10 December 2002 in HKSAR v Wong Hing-piu [2003] 1 HKC 373.

2. The point has been framed in the following terms:

"Is a jury permitted to take into account the personal characteristics of the accused, other than age and sex, when considering whether the reaction of the accused to provocation was that of a 'reasonable man', within section 4 of the Homicide Ordinance, Cap. 339?"

3. The lateness of the application, which has arisen for a number of reasons, is the least important factor.

4. More significantly, in the opinion of this court, whilst the point in question may well raise an issue of great and general importance, this appears to be a matter of academic interest to the Applicant as the point never arose in his case.

5. Furthermore, although the decision in the House of Lords in R v Smith (Morgan) [2000] 3 WLR 654 presents a new and important development in the law of provocation in England, which has only arisen since the Appeal Committee declined to grant leave on the same point in Kong Kwong-san v HKSAR, FAMC 4/1999 (unreported), we have noted that the Appeal Committee (at page 3) stated in terms:

"In our view, Luc Thiet Thuan is wholly convincing, and there is no reasonable prospect of the Court of Final Appeal disagreeing with the Privy Council on the point in question. It should be mentioned for the sake of completeness that in following Luc Thiet Thuan the Court of Appeal was not proceeding merely on the basis that it was bound by that decision. It said in terms that it also preferred the thinking in that case to that in Smith."

6. In all the circumstances, we propose to decline to grant a certificate.