HKSAR v. PUN GANGA CHANDRA AND OTHERS

HCCC 259/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT CRIMINAL CASE NO.259 OF 1998

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R U L I N G

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1. I have before me an application that I should rule that the only intent available if an accused is to be convicted of the offence of murder is that he had either the intention to kill the victim or the intention to do an act endangering life - the subjective test.

2. I am aware that an argument may be mounted at another time before the Court of Appeal on the basis that the only logical intent for murder is as I have set out above but I decline to hear that argument on that basis as I am bound by the Common Law precedents on the matter. The argument that is put before me and upon which I must rule is whether the enactment of the Bill of Rights and the promulgation and adoption of the Basic Law by the change of sovereignty have, by statutory and constitutional force, changed the Common Law intent for murder.

3. Article 28 of the Basic Law states :

" The freedom of the person of Hong Kong residents shall be inviolable.

No Hong Kong resident shall be subject to arbitrary or unlawful arrest detention or imprisonment. Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited. Torture of any resident or arbitrary or unlawful deprivation of the life of any resident shall be prohibited."

Article 7 of the Basic Law states :

" In criminal and civil proceedings in the Hong Kong SAR 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."

The relevant portion of Article 5 of the Bill of Rights states :

"(1) 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."

Clearly if any of those provisions have the effect of changing the Common Law, then it is open to a Court to declare the law as it finds it after the change.

4. The Common Law, as it stands is that a person is guilty of murder if he kills and at the time he intends either to kill or to cause really serious bodily harm and the victim dies.

5. In respect of secondary parties, it is sufficient for the secondary party to realize that the principal might kill with intent to do so, or with intent to do really serious harm and yet continues to act in a joint enterprise with the principal when the act of the principal takes place.

6. Mr Dykes bases his arguments on two decisions of the Canadian Supreme Court in R. v. Vaillancourt (1988) 47 DLR (4th) 399 and R. v. Martineau (1990) 58 WWR (3d) 353. Each of these cases dealt with a codified provision in the Canadian Criminal Code which created the offence of murder where a killing took place in the course of one of a specified number of offences. Effectively a felony murder rule.

7. The Court in each case relied upon section 7 and section 11 of the Canadian Charter of Rights and Freedoms. Section 7 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."

Section 11 states :

"Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal."

The Court held that the principles of fundamental justice forbade the conviction of a person for murder on the basis of an absolute liability arising from the commission of another offence. And further that the legislation had included, as an element of murder, proof of certain conduct that had led to death.

8. Mr Dykes argues that the detention for life on a conviction for murder of a person who does not intend to kill and who does not intend an act endangering life is an arbitrary and unlawful detention within Article 5 of the Bill of Rights. He further argues that the moral culpability of a person who intends to kill is higher than that of a person who has a lesser intent but who nevertheless is guilty of murder under the present law and yet they suffer the same penalty of mandatory imprisonment for life.

9. Clearly the fact that a person is convicted of murder is imprisoned for life when his intent is less than an intention to kill, cannot be arbitrary or unlawful! Imprisonment would seem to be an appropriate remedy or punishment for what he has done. Nor can the fact that he is sentenced to life imprisonment be arbitrary or unlawful. Imprisonment is obviously a necessary sanction for serious crimes and the maximum penalty of life imprisonment is available for a wide range of offences and moral culpabilities.

10. The argument must therefore be that it is arbitrary and unlawful to impose a mandatory life imprisonment on murder, both for an intent to kill or from a lesser intent, because the latter only requires a maximum discretionary penalty of life imprisonment due to its lesser moral culpability. If the argument holds good, then a comparison of the penalty appropriate for any one offence with the penalty for another on the basis of their respective moral culpabilities could give rise to the same conclusion.

11. I am 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 hold to be arbitrary or unlawful because the mandatory sentence covers a range of culpability rather than being limited to one point of culpability.

12. Mr Dykes also argues that the intent for murder, which now exists under the Common Law is unlawful under Article 5 because on the authority of R. v. Vaillancourt (supra) at pp.416 and 417 a Common Law rule that permits conviction in the absence of a specific mens rea which he says here is an intention to kill or do an act endangering life, offends the presumption of innocence. It is true that Lamer J in that case held that, where a codified section of the Criminal Code replaced mens rea with the proof of the commission of an offence and proposed a specific intent, the mens rea in R v. Vaillancourt dealt with a lack of mens rea in a section of the Canadian Criminal Code and not Lamer J.'s proposed intent for murder and therefore is not of use in determining the issue before me.

13. In our law, the intent to kill and the intent to cause really serious harm and the intent necessary for secondary parties are all specific intents. A lack of specific intent would offend the presumption of innocence, but the fact that the Common Law specific intent does not meet with the approval of the Canadian judges under their Charter and the fact that an argument may be mounted in another place along the line set out by Lord Mustill in R. v. Powell & Daniels and Another [1998] 1 Cr App Rep 261, HL, does not avoid the fact 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.

14. It cannot be said in respect of a count of murder that a person can be convicted of a more serious crime than he foresaw or anticipated. For example, any person who participates in a joint venture knowing that another participant has a weapon and might use it, or realizing that the principal might kill with one of the intents, should know that he is at risk of conviction of murder if a killing takes place. The specific intent is the decision to continue to participate in the joint enterprise in those circumstances where a killing takes place.

15. The comparison of the intention required to attempt murder with the intent for the completed offence affords no assistance. It is not that the intent for attempted murder is set at a higher level than that of the completed offence, but that there are a number of different intents which will make a person guilty of murder. There is only one intent in respect of the attempted murder. This is due to the nature of each offence and not the degree of culpability.

16. It may be at some time that the legislature will see fit to categorize murder into different levels, catagorised by intent, or create a further category for manslaughter, but I consider it to be unnecessary and I cannot find that either the Bill of Rights or Basic Law has created either of those effects nor altered in any way the Common Law relating to the intent necessary to commit murder. The application is refused.