LEUNG WAI LUN AND ANOTHER v. HKSAR

FAMC Nos. 40 & 44 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS. 40 AND 44 OF 2003 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 522 OF 2000)

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1. The relevant facts are too notorious to need telling, this being the case known to the public as the "Hello Kitty" case, thus called because the extensively tortured and ultimately dismembered victim's skull had been hidden inside a "Hello Kitty" doll.

2. Charged with murder, these two applicants were convicted instead of manslaughter. Each was sentenced to life imprisonment, with a minimum term of 20 years' imprisonment being specified. The Court of Appeal (presided over by Mr Justice Stuart-Moore VP who sat with Mr Justice Stock JA and Mr Justice Seagroatt) affirmed the applicants' convictions and sentences. Now both applicants seek leave to appeal to the Court of Final Appeal against conviction. And the applicant Leung also seeks leave to appeal to the Court of Final Appeal against sentence.

3. At the trial the issue as to the cause of the victim's death was a simple one. Did she die as the result of an assault as the prosecution sought to prove beyond reasonable doubt? Or did she die as the result of a drug overdose as the defence suggested?

4. Despite the simple nature of this issue, one of the things said by the trial judge (Mr Justice Nguyen) in the course of his summing-up could, if taken in isolation, have given the jury a false impression. Taken in isolation, it could have given the jury the impression that the defendants could be guilty of murdering or unlawfully killing the victim even if she had died of a drug overdose.

5. But that unfortunate statement by the trial judge did not stand alone. And the Court of Appeal took the view, which was open to it, that the whole of what the trial judge said to the jury could not have left the jury with the impression that any defendant could be guilty of homicide if the victim had died of a drug overdose rather than an assault. So the Court of Appeal did not regard the case as one of misdirection.

6. Nevertheless the Court of Appeal treated the trial judge's unfortunate statement as a material irregularity. So it turned to the proviso. On the basis that the jury could not have been misled, fortified by the view it took of the strength of the evidence pointing to an assault as the cause of the victim's death, the Court of Appeal applied the proviso. So it dismissed the applicants' appeals against conviction.

7. Two arguments are advanced on the applicants' behalf in attacking the Court of Appeal's use of the proviso. One is essentially to the effect that the evidence did not warrant the use of the proviso. The other is essentially to the effect that the applicants did not receive a fair hearing in regard to the use of the proviso because the Court of Appeal had not expressly invited argument thereon.

8. The shortest answer to both of these arguments is simply this. Once the Court of Appeal took the view, which it was entitled to take, that the trial judge's unfortunate statement could not have misled the jury when taken in the context of the summing-up as a whole, the irregularity ought not to have been regarded as material. So there was simply no need to turn to the proviso at all.

9. That disposes of both arguments as to conviction. But, lest there be any doubt in future on the point raised by the second of those two arguments, we should say this. There is no practice - nor ought there to be any practice - under which the Court of Appeal is obliged expressly to invite argument on the proviso before it can ever apply the same. It is essentially a matter for the Court of Appeal to judge whether everything that can usefully be said on matters relevant to the proviso has been said.

10. Both applications for leave to the Court of Final Appeal against conviction are dismissed.

11. As to sentence, there is simply no basis for granting leave to appeal to the Court of Final Appeal. It is clear that no sentencing principle has been violated. And the facts amply justify the sentences imposed. So the applicant Leung's application for leave to appeal to the Court of Final Appeal against sentence is also dismissed.