HKSAR v. CHAN CHUI MEI

HCCC378/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.378 OF 1998

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R U L I N G

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The Application

1. The Defendant applies for her discharge from the indictment on the 1st Count of Murder under s.16 Criminal Procedure Ordinance, Cap.221 by a Notice dated 20th May 1999.

2. In brief her case is that the common law offence of murder now requires the prosecution to prove that at the material time she intended to kill or she had foresight that death would result from her acts (subjective foreseeability). That being the case, the application is that the evidence on the depositions is insufficient to establish a prima facie case against her and she is entitled to be discharged.

3. The prosecution's case against the Defendant is not that she herself wielded a weapon or physically took part in the attack on the Deceased. The evidence is that the Deceased was attacked by some men armed with knives and these men had arrived at the scene of the attack together with the Defendant, and the Defendant is alleged to have pointed at the Deceased and his two brothers who were wounded in the attack and saying "they're the ones" or "there they are". The case of the prosecution is therefore clearly that the Defendant was either aiding and abetting the assailants or that she had joined in a joint enterprise to attack the Deceased and his two brothers. The case against her is, therefore, that she was a secondary party to the attack and not the primary party.

The issues

4. It was submitted that for the prosecution to make out a case of murder, a state of mind less than an intention to kill, namely, an intention to cause serious bodily harm, would suffice. Moreover, a secondary party to a joint enterprise may be convicted of murder on the basis of foreseeability of death or serious bodily harm even though, for the principal offender, nothing less than an intention to kill, or to cause serious bodily harm would suffice for a conviction. It is therefore submitted that the effect is that the law of homicide permits a conviction for murder on the basis of an implied specific intention to kill manifested by an intention to cause serious bodily harm or joining in an enterprise where a killing might result.

5. The question therefore is whether the common law has been affected by the provisions of the Hong Kong Bill of Rights Ordinance and the Basic Law or both, so that now, in order for a defendant to be convicted of the offence of murder, the only states of mind of the defendant that will suffice are that he either had the intention to kill the victim or an intention to do an act endangering life (subjective foreseeability).

6. Mr Dykes, for the Defendant, has accepted that if the common law relating to homicide is so unsatisfactory that it requires restating by the Judges in a more principled and logic manner, then that task is not for me but for the Court of Final Appeal. However, he makes the application because he submits that this Court should rule that the common law definition of murder is unconstitutional and therefore is a breach of the Bill of Rights or the Basic Law, or both.

The Bill of Rights and the Basic Law

7. The relevant articles in the Hong Kong Bill of Rights Ordinance are Articles 5 and 11. Article 5(1) states :

" Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."

Article 11(1) states :

" Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law."

8. The relevant provisions of the Basic Law are Articles 28 and 87. Article 28 states :

" The freedom of the person of Hong Kong residents shall be inviolable. No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. ...."

Article 87 states :

" In criminal or civil proceedings in the Hong Kong Special Administrative Region, the principles previously applied in Hong Kong and the rights previously enjoyed by parties to proceedings shall be maintained.

Anyone who is lawfully arrested shall have the right to a fair trial by the judicial organs without delay and shall be presumed innocent until convicted by the judicial organs."

9. Mr Dykes has traced the development of the offence of murder and has shown how the present day common law definition of murder was arrived at. Basically, he says that in view of the way that the secondary intent of causing grievous bodily harm was developed, this present day ingredients of the offence of murder are not "on such grounds and in accordance with such procedure as are established by law" (Article 5, Bill of Rights Ordinance).

10. He relies on the Canadian case of R. v. Vaillancourt 39 CCC (3d) 118 where the Canadian Supreme Court held that the provisions of s.213 of the Criminal Code which created the offence of murder was in violation of ss.7 and 11(d) of the Canadian Charter of Rights and Freedom which came into force on 21st June 1984. Section 7 of the Canadian Charter states :

"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

11. Even though Article 5 of the Hong Kong Bill of Rights Ordinance does not give citizens the right to life, and even though Article 5 says that no one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law, and does not have the words which appear in the Canadian Charter, namely, "the right to life, liberty and security of the person is not to be deprived thereof except in accordance with the principles of fundamental justice", Mr Dykes argues that the effect of Article 5 is the same as the effect of s.7 of the Canadian Charter. Section 11 of the Canadian Charter speaks of any person charged with an offence having the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal (sub-section (d)).

12. In Vaillancourt, Lamer J. said at p.133 :

"...As a result, while Parliament retains the power to define the elements of a crime, the courts now have the jurisdiction and, more important, the duty, when called upon to do so, to review that definition to ensure that it is in accordance with the principles of fundamental justice."

At p.135, Lamer J. said :

"...Any provision creating an offence which allows for the conviction of an accused notwithstanding the existence of a reasonable doubt on any essential element infringes sections 7 and 11(d)."

The historical development of the ingredients of murder

13. In Vaillancourt, Lamer J. traced the historical development of s.213 of the Canadian Code which created the concept of felony murder. In so doing, he also traced the development of the offence of murder in England. At p.129, Lamer J. said :

" In the early history of English criminal law, murder referred to a secret killing or the killing of a Dane or, later, a Norman by an Englishman and to the fine levied on the township where the killing occurred. By the early 14th century, the fines had been abandoned and murder had come to be the name used to describe the worst kind of homicide. The expression 'malice aforethought' was subsequently adopted to distinguish murder from manslaughter, which denoted all culpable homicides other than murder. Malice aforethought was not limited to its natural and obvious sense of premeditation, but would be implied whenever the killing was intentional or reckless. In these instances, the malice was present and it is the premeditation which was implied by law.

Coke took this one step further and implied both the malice and the premeditation in cases where the death occurred in the commission of an unlawful act....

Coke's statement of the unlawful act murder rule has been much criticized. Stephen demonstrated that Coke's statement was not supported by the authorities cited.... Further, a recent author has suggested that Coke's statement was just 'a slip of the quill' and that Coke intended to say that accidental killing by an unlawful act was manslaughter.... Other 17th century writers ... rejected the unlawful act murder rule as set out by Coke. Despite all of this, Coke's doctrine seems to have been accepted by the writers and the cases in the 18th century, and their only contribution was to limit it to killings in the course of felonies.... Of course, at that time, both the underlying felony and the murder were punishable by death, so the definition of a homicide in the course of a felony as a murder had little practical effect.

In the 19th century, the felony murder rule was accepted as part of the common law... However, the rule was strongly criticized by Stephen, who labelled it 'cruel' and 'monstrous'.."

14. Mr Dykes has traced the development of murder in the following way. He states :

"The offence of murder is an ancient one. Its origins pre-date the Norman Conquest.

Coke defined murder in 1617 as

'When a man of sound memory, and of the age of discretion unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the King's peace, with malice fore-thought, either expressed by the party, or implied by law, so as the party wounded, or hurt, etc. die of the wound, or hurt, etc.'"

Mr Dykes adopted the review of the law of homicide by Lord Diplock in R. v. Hyam [1975] AC 55. In summary, and following Lord Diplock's speech, the development of the common law was as follows :

(a) Until the enactment of the Homicide Act 1957 the requisite intention was either actual malice or constructive malice. Constructive malice related to a killing in the course of a felony. Where constructive malice was alleged it was not necessary to inquire into the attitude of mind of the killer respecting the infliction of harm (pp.87B-D).

(b) Before 1957 judges defined the intention that had to be proved in order to sustain a conviction for murder as an intention to kill or to do grievous bodily harm (p.87E).

(c) Lord Ellenborough's Act of 1803 made it a felony to shoot or stab or to do any grievous bodily harm and if death resulted it was constructive malice and so murder (pp.87F-88F).

(d) The practical consequence was that the prosecution did not have to rely on proof of an intention to commit a specific felony to prove murder but could rely on an intention to do harm (p.88G-H).

(e) The 1957 Act abolished the notion of constructive malice in murder. It became necessary to ascertain what was the "old" law in this respect (pp.88H-89G).

(f) A review of the old case law does not lead to the conclusion that judges directed juries that actual malice required proof only of an intention to cause serious bodily harm (pp.89H-91D).

(g) A review of proposals for law reform respecting the law of homicide over the relevant period shows that any codification (not change) of the law would have resulted in a definition of murder which required proof of an intention to kill or to cause bodily injury known to the offender as being likely to endanger life (subjective awareness) (pp.92D-F).

(h) The decision of the Court of Appeal in R. v. Vickers [1957] 2 QB 664 misstated the common law by saying that it had always been the common law that proof of an intention to cause grievous bodily harm was sufficient (pp.92G-93B).

(i) The mistake was perpetuated by the House of Lords in D.P.P. v. Smith [1961] AC 290 when the House accepted that an intention to kill or to cause grievous bodily harm sufficed for murder (p.93C-G).

15. Some judges in England in the past 25 years have commented on the undesirability of the very serious offence of murder being capable of being committed by a person with an intention less than an intention to kill. These comments were made by Lord Diplock and Lord Kilbrandon who were the two dissenting judges in the House of Lords' case of Hyam v. D.P.P. [1975] AC 55.

16. In R. v. Cunningham [1982] AC 566 at p.582, Lord Edmund-Davies said :

"...the view I presently favour is that there should be no conviction for murder unless an intent to kill is established, the wide range of punishment for manslaughter being fully adequate to deal with all less heinous forms of homicide. I find it passing strange that a person can be convicted of murder if death results from, say, his intentional breaking of another's arm, an action which, while undoubtedly involving the infliction of 'really serious harm' and, as such, calling for severe punishment, would in most cases be unlikely to kill. And yet, for the lesser offence of attempted murder, nothing less than an intent to kill will suffice. But I recognise the force of the contrary view that the outcome of intentionally inflicting serious harm can be so unpredictable that anyone prepared to act so wickedly has little ground for complaint if, where death results, he is convicted and punished as severely as one who intended to kill."

17. In Attorney General's Reference (No.3 of 1994) [1997] 3 WLR 421 Lord Mustill at p.424 said :

"...One conspicuous anomaly is the rule which identifies the 'malice aforethought' ... required for the crime of murder not only with a conscious intention to kill but also with an intention to cause grievous bodily harm. It is, therefore, possible to commit a murder not only without wishing the death of the victim but without the least thought that this might be the result of the assault. Many would doubt the justice of this rule, which is not the popular conception of murder and ... not longer rests on any intellectual foundation."

18. In R. v. Powell and Daniels [1998] 1 Cr App R 261, Lord Mustill at 264 said :

" Intellectually, there are problems with the concept of a joint venture, but they do not detract from its general practical worth, which has proved itself over many years. In one particular situation there is, however, a problem which this time-honoured solution cannot solve. Namely, where S foresees that P may go too far; sincerely wishes that he will not, and makes this plain to P; and yet goes ahead, either because he hopes for the best, or because P is an overbearing character, or for some other reason. Many would say, and I agree, that the conduct of S is culpable, although usually at a lower level than the culpability of the principal who actually does the deed. Yet try as I may, I cannot accommodate this culpability within a concept of joint enterprise. How can a jury be directed at the same time that S is guilty only if he was party to an express or tacit agreement to do the act in question, and that he is guilty if he not only disagreed with it, but made his disagreement perfectly clear to P? Are not the two assertions incompatible?

Lord Steyn at p.269 said :

"...It is sufficient if it is established that the defendant had an intent to cause really serious bodily injury. This rule turns murder into a constructive crime. The fault element does not correspond to the conduct leading to the charge, i.e. the causing of death. A person is liable to conviction for a more serious crime than he foresaw or contemplated."

19. Mr Dykes therefore submits that in the special circumstances, respecting the common law of homicide, this amounts to constructive liability. Where in the case of a secondary party to murder, it is sufficient to found a conviction for murder if the secondary party realises that the principal might kill with intent to do so, or with intent to do really serious bodily harm, even though in order for the principal to be guilty of the offence of murder, foreseeability of death or of really serious bodily harm would not be sufficient. Mr Dykes therefore submits that this is anomalous and contrary to legal principle. He says that the consequences of the common law developing in this way are that a person is liable to conviction for a more serious crime than he thought so or contemplated. Specifically, it gives rise to the following anomalies :

(1) A person can be convicted of murder without having an intention to kill. A person cannot, however, be convicted of attempted murder without such an intention.

(2) A person convicted of murder but who did not intend to kill must be sentenced to a term of life imprisonment. A person convicted of attempted murder may be sentenced to life imprisonment at the discretion of the Court.

(3) A secondary party who foresees the possibility that a weapon may be used to inflict serious harm but nonetheless continues with the joint enterprise and death results, is guilty of murder. This is in effect a type of recklessness and is inconsistent with the long established legal principle that murder is a crime of specific intent.

Ruling by Gall J.

20. A similar application was made to Gall J. in High Court Criminal Case 259/98 on 31st May 1999. Gall J. held that the fact that a person, if convicted of murder, is imprisoned for life when his intent is less than an intention to kill, cannot be arbitrary or unlawful. Gall J. also ruled that he was unable to say that the common law, having developed its present position as to intent in respect of the offence of murder, modified as it has been over the years by the legislation, can be held to be arbitrary or unlawful because the mandatory sentence of life imprisonment covers a range of culpability rather than being limited to one point of culpability. He also ruled that there is a defined category of specific intents for murder as there are for other offences and the enactment of the Bill of Rights and the promulgation of the Basic Law did not make those intents or any part of them unlawful.

21. I respectfully agree with Gall J.

Ruling

22. The law relating to homicide was extensively considered by the House of Lords in 1974 in the case of Hyam v. Director of Public Prosecutions [1975] AC 55. By a majority decision, the House of Lords held that a person who, without intending to endanger life, did an act knowing that it was probable that grievous, in the sense of serious, bodily harm would result was guilty of murder if death resulted. This decision was consistent with previous decisions on homicide, except possibly the decision in D.P.P. v. Smith [1961] AC 290. The decision in Hyam, together with all the other previous decisions, were part of the common law which applied to Hong Kong. Under Article 8 of the Basic Law which came into force on 1st July 1997, the laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained except for any that contravene the Basic Law, and subject to any amendment by the legislature of the Hong Kong SAR. In my view, the law of murder which has as one of its ingredients an intention to cause grievous bodily harm, has served the communities in all common law countries very well for over a very long period of time. This ingredient of the law of murder, in my view, does not violate Article 5 of the Bill of Rights Ordinance. Article 5 lays down that no person shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. The wording of Article 5 is different from the wording of s.7 of the Canadian Charter which speaks of the deprivation of the right to life, liberty and security being prohibited except in accordance with the principles of fundamental justice. The requirement that an intention to cause serious bodily harm is sufficient to constitute murder is a requirement which is based upon the common law and, in my view, there are no grounds for saying that this requirement is not in accordance with the established law. In my view, the requirement also does not violate Article 11 of the Bill of Rights which preserves the presumption of innocence for people charged with criminal offences. In R. v. Wang Shih Hung and Attorney General v. Fong Chin Yue [1995] 1 HKCLR 193, Bokhary J.A., sitting in the Court of Appeal said at p.200 that just because an offence was one of strict liability, it does not mean that there can be a challenge under the Bill of Rights. He continues :

"Of course, that is not to say that the express wholesale abolition of each and every mental element in our criminal law would be consistent with the Bill of Rights. If effective, such a measure would leave no one with liberty or security of person. And of course the right to liberty and security of person is a right secured for everyone under article 5(1) of the Bill of Rights."

23. We are not dealing here with anything as draconian as the removal of all mental elements in the criminal law. The requirement of an intention to cause grievous bodily harm would only constitute the offence of murder if death results as a consequence of the act of the Defendant. A comparison with the offence of attempted murder serves no useful purpose because attempted murder is a different offence and in attempted murder there is no death resulting from the act of the Defendant. As was submitted by the prosecution, mere intellectual dissatisfaction, as opposed to real injustice, cannot be the starting point as a basis to invite the Courts to radically alter the law of homicide. I accept the prosecution's submission that the common law of murder has served the community well for hundreds of years and that the law is clear and predictable. The crime is not arbitrary and it is not fundamentally unjust to criminalise a person whose conduct and state of mind amounts to the crime of murder as it is presently constituted.

24. The law relating to the liability of secondary parties to murder was definitively considered by the Privy Council in Chan Wing-siu v. R. [1985] 1 AC 168. That decision was followed in R. v. Hui Chi-ming [1991] 2 HKLR 537 which was also heard in the Privy Council. These cases are part of the common law which under Article 8 of the Basic Law was maintained after the change of sovereignty and which to date has not been amended by legislation. If there are in fact any grounds for concern, as submitted by Mr Dykes, that a person can be guilty of murder even where he only has the intention lesser than the intention to kill, then that is a matter for the legislature to consider, if the Government recommends such a course. The abolition of the death penalty for murder was accomplished by legislation to that effect. My ruling therefore is that the common law relating to homicide does not violate any provisions of the Bill of Rights or the Basic Law. The application is refused.