HKSAR v. MARIA REMEDIOS COADY

CACC 119/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 119 OF 1999

(ON APPEAL FROM HCCC NO. 194 OF 1998)

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J U D G M E N T

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Keith JA (giving the judgment of the Court):

Introduction

1. Shortly before midnight on 19 December 1997, the emergency services received a 999 call. It was from an expatriate woman. She was in an excited and emotional state. She asked for an ambulance to come to the flat where she was because someone had had a heart attack. She did not say who. When the ambulance men arrived at the flat, they found a man lying on the floor of the living room. He had been stabbed several times. The following afternoon he died as a result of his injuries. The woman who had called the emergency services was eventually charged with his murder. She was tried by Verina Bokhary J and a jury in the Court of First Instance. She pleaded not guilty. However, after a trial lasting a number of days, she was convicted and sentenced to imprisonment for life. She now applies for leave to appeal against her conviction.

2. In her summing-up, the judge directed the jury in the conventional way. She directed the jury that they could only convict the Applicant of murder if they were sure

The correctness of that latter direction is challenged on this appeal. It is said to be inconsistent with the Basic Law and the Bill of Rights. The argument is obviously an important and far-reaching one - challenging as it does an established tenet of the common law. Since it involves a question of law alone, leave to appeal is unnecessary, and from now on, we shall refer to the Applicant as the Appellant.

Procedural matters

3. There are three procedural matters which it is convenient to dispose of initially. First, there are other grounds of appeal relating to other aspects of the judge's summing-up to the jury. We decided to defer argument on those grounds, and to concentrate for the time being on the correctness of the direction which the judge gave as to intent. That was because only one day had been set aside for the hearing of the appeal, and we thought that even with the benefit of full written submissions the argument on this issue was likely to take up most of the day. That proved to be correct.

4. Secondly, the argument which is now advanced on behalf of the Appellant was not raised at the Appellant's trial. An appellate court is usually reluctant to permit new points to be taken on appeal, but we were mindful of the importance of the argument and of the devastating impact on the Appellant of her conviction for murder. In the normal course of events, we would have liked to have had the benefit of the trial judge's views on the topic, but it so happens that some months later the same judge was confronted with this argument in another murder trial. She ruled in favour of the conventional direction, and we have had the advantage of reading her ruling. We should add that Mr Andrew Bruce SC for the Respondent took no point on the fact that the argument had not been addressed to the trial judge, and in the circumstances we unhesitatingly decided to permit the argument to be advanced.

5. Thirdly, the grounds of appeal did not focus on the judge's direction to the jury. It focused instead on whether the judge should have withdrawn the case from the jury at the conclusion of the prosecution's case. That would have involved a detailed consideration of the evidence - to see whether it would have been open to the jury, on the evidence called by the prosecution, to convict the Appellant, albeit on the footing that the law is as Mr John Mullick for the Appellant claims it to be. Indeed, if the court had taken the view that it would have been open to the jury to convict the Appellant even on a view of the law most favourable to the Appellant, the critical question which this appeal raises would not have been decided - unless at the same time the judge's direction to the jury was being challenged as well. For that reason, Mr Mullick changed the focus of the appeal to challenge the judge's direction to the jury, and Mr Bruce did not stand in his way. By that route, the compatibility of the judge's direction to the jury with the Basic Law and the Bill of Rights arises directly for decision.

6. Having disposed of the procedural issues, the way is now clear for the important issue which the appeal raises to be addressed.

The criticisms of the "grievous harm" rule

7. The law of homicide was described by Lord Mustill in Attorney-General's Reference (No. 3 of 1994) [1998] AC 245 at p. 250D as "permeated by anomaly, fiction, misnomer and obsolete reasoning". He was describing the law in England, but there are no differences of substance between the law of homicide in England and the law of homicide in Hong Kong. One of the features of the law of homicide is what has come to be known as the "grievous harm" rule. Under that rule, a person can be convicted of murder even if he did not intend to kill his victim. For a person to be convicted of murder, it is sufficient if he intended to cause his victim grievous bodily harm, i.e. really serious bodily injury. The consequence, according to the critics of the rule, is that it is "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": Lord Mustill in Attorney-General's Reference (No. 3 of 1994) p. 250E. Putting it in another way, the "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": Lord Steyn in R. v. Powell [1999] 1 AC 1 at p. 15A.

8. Apart from being criticised on these grounds, the "grievous harm" rule is said to be anomalous in other respects. Two examples will suffice for present purposes. First, the mens rea required for the offence of attempted murder is an intent to kill. Nothing less will do. Many commentators on the law of homicide think it strange that if a defendant is tried for murder because his victim has died, proof of an intention to cause really serious bodily injury is sufficient, whereas if a defendant is tried for attempted murder because his victim has survived, proof of an intention to kill is required. Secondly, there is said to be an unsatisfactory difference between the mens rea required for murder committed by the primary offender, and the mens rea required for murder committed by a secondary offender. Whereas an intention to kill or to cause really serious bodily injury is required for the conviction of the primary offender, all that is required for the conviction of the secondary offender is foresight that either death or really serious bodily injury might result as an incident of the enterprise in which the secondary offender joined. Many commentators on the law of homicide think it strange that an intention to cause at least really serious bodily injury must be proved against the defendant at whose hands the deceased is alleged to have died, but that such an intention need not be present in the case of others who participated in the enterprise in some other way.

9. These criticisms of the law of homicide have resulted in calls for homicide to be classified as murder only if there is either (a) an intention to kill or (b) an intention to cause really serious bodily injury coupled with an awareness of the risk of death: see, for example, Lord Steyn in Powell at p. 15F-G. Indeed, in the present appeal, Mr Mullick contended that

However, this formulation itself raises a number of difficult questions. Why should the foreseeability be subjective? Should not objective foreseeability be sufficient? And if it is thought that an element of subjectivity is appropriate, could that not be met by requiring foreseeability to depend on what a reasonable person might have foreseen if he had been in the position of the defendant? The law has adopted a similar approach to the defence of provocation. And what should be the degree of likelihood that death will result? Should it be foreseeable that death will probably result, or should it be sufficient if it is foreseeable that death may possibly result?

10. Despite these criticisms of the "grievous harm" rule, the rule is firmly entrenched in the common law as it applies to Hong Kong. It was confirmed by the House of Lords in R. v. Cunningham [1982] AC 566, and has been applied in Hong Kong without question both before and since. It is not appropriate for an intermediate appellate court to embark upon law reform. Its duty is to apply the common law as it is, not to say what it should be. If the common law in this area is to be changed by the courts, that should only be done by the Court of Final Appeal, though we suspect that even the Court of Final Appeal would say that so entrenched a rule of the common law should only be changed by the legislature.

11. However, that is not to say that the courts have no role to play in this area. If the "grievous harm" rule is inconsistent with any of the rights protected by the Bill of Rights, it is for the courts to declare that to be the case. However firmly the "grievous harm" rule may be entrenched in the common law, it must be set aside if it is incompatible with the Bill of Rights. No law is immune from judicial scrutiny for its lack of compatibility with the Bill of Rights, even if that requires the courts to set aside a rule which the common law regards as immutable and sacrosanct. In the present case, the "grievous harm" rule is said to be inconsistent with the rights protected by Arts. 5(1), 10 and 11(1) of the Bill of Rights.

Protection against arbitrary detention

12. Art. 5(1) of the Bill of Rights provides:

The "grievous harm" rule is said to infringe these rights. That is because a person can only be deprived of his liberty in consequence of the application of a law which is not "arbitrary", i.e. one which can be objectively justified. Detention which is the consequence of a conviction following a breach of a law which cannot be objectively justified is arbitrary. Moreover, imprisonment for life is the mandatory sentence on conviction for murder: see section 2 of the Offences Against the Person Ordinance (Cap. 212). Since the sentence is mandatory whatever the defendant's degree of criminal culpability, his detention for life is said to be arbitrary for that reason as well.

13. In our opinion, the latter argument does not assist on the attack on the "grievous harm" rule. If the mandatory sentence for murder covers persons of differing degrees of culpability, that is a consequence of the law of murder itself embracing both persons who intend to kill and persons who merely intend to cause really serious bodily injury. If including all such persons within the definition of murder does not infringe Art. 5(1), the fact that a sentence of life imprisonment must be imposed irrespective of the category into which the defendant falls will not cause the "grievous harm" rule to infringe Art. 5(1). It may be argued that a mandatory life sentence infringes Art. 5(1) on the basis that it provides for the same sentence for persons of differing degrees of culpability. But that does not affect the question whether the Appellant was rightly convicted of murder. It goes to the question whether the mandatory sentence imposed on her conviction for murder, irrespective of her culpability, infringes Art. 5(1). It goes, in other words, to an appeal against her sentence rather than to her appeal against her conviction. We shall be returning to this point later.

14. The use of Art. 5(1) to attack the "grievous harm" rule makes an important assumption about the ambit of Art. 5(1). The argument assumes that Art. 5(1) does something more than to permit judicial scrutiny of laws relating to arrest and detention, and to provide procedural guarantees for the fair and lawful operation of those laws. It assumes that Art. 5(1) permits the court to review the substantial law for the breach of which a person was detained. No argument was advanced in support of this assumption. It was simply stated as an article of faith that justice requires laws which result in the arrest and detention of persons who break them to be struck down as incompatible with a right to liberty if they cannot be objectively justified.

15. The language and structure of Art. 5 suggest that this assumption is not correct. Art. 5(1) contrasts the loss of liberty as a result of arbitrary arrest or detention, and the loss of liberty on grounds and in accordance with procedures established by law. That suggests that detention would only be arbitrary if it was not in accordance with the fair and lawful operation of the laws relating to arrest and detention, or if those laws could not be objectively justified. Moreover, all the other provisions in Art. 5 suggest that the rights which Art. 5 protects are procedural. Thus, Art. 5(2) relates to the right to be informed of the reasons for arrest and of the charges preferred. Art. 5(3) provides that release on bail pending trial should be the norm, and that a person arrested or detained on a criminal charge should be brought before a judge or magistrate promptly so that the question of bail can be addressed. It also provides for the defendant to be tried within a reasonable time or released. Art. 5(4) requires the court to determine without delay a claim that a person is being detained unlawfully. And Art. 5(5) provides for compensation for anyone who has been the victim of unlawful arrest or detention. In summary, these rights provide protection against, and remedies for, arrest or detention which is not in accordance with the laws relating to arrest or detention or if those laws cannot be objectively justified. They do not suggest that the arrest or detention of a defendant is impermissible if any of the elements of the offence which the defendant is alleged to have committed cannot be objectively justified.

16. This thinking informed the early jurisprudence on Art. 5(1). Thus, in R. v. Hui Lan Chak (1992) 2 HKPLR 423, Judge Lugar-Mawson (as he then was) sitting in the District Court said at p. 436:

Similarly, in R. v. Hui Kwok Fai (1993) 3 HKPLR 752, Judge Kilgour sitting in the District Court said at p. 758:

17. Shortly after Judge Kilgour's judgment, a different approach began to emerge. Relying on various international materials, a magistrate in R. v. Wong Lai Shing (1993) 3 HKPLR 766 concluded that Art. 5(1) has a significant substantive aspect, which requires that the law under which the arrest or detention is authorised, i.e. the substantive law which the defendant was said to have contravened, should not be arbitrary. The term "arbitrary" in this context, he held, means unjust, unreasonable or capricious, involving a lack of predictability, or otherwise inappropriate.

18. The fact that Art. 5(1) has a substantive content is confirmed in two decisions of the Court of Appeal. The first is Attorney-General v. Fong Chin Yue (1994) 4 HKPLR 430. After citing a passage from Lord Woolf's speech in Attorney-General v. Lee Kwong Kut [1993] AC 951, Bokhary JA (as he then was) said at p. 440:

The view implicit in these observations is that there is some scope for judicial scrutiny of the ingredients of a criminal offence (in that case the mens rea) to determine whether punishment for its breach would violate the right of liberty and security of the person. The precise scope of that scrutiny was touched upon in the second case - Attorney-General v. Mak Chuen Hing (1996) 6 HKPLR 458. Litton V-P (as he then was) said at p. 461C-D:

The view explicit in these observations is that judicial scrutiny of the kind envisaged in Fong Chin Yue is permissible, but that the threshold for declaring that a law which provides for arrest or detention for its breach is inconsistent with the rights protected by Art. 5(1) is a high one. Litton V-P regarded laws which were harsh or oppressive as examples of when the law should be regarded as arbitrary in its application.

19. All these cases related to offences of strict or absolute liability, and it may be that offences for which no mens rea is required are to be treated exceptionally. For our part, we understand the thinking which informed the early jurisprudence on Art. 5(1). The arguments relating to the structure and language of Art. 5(1) appear to us to be compelling. But that does not mean that judicial scrutiny should be limited to whether the laws relating to arrest and detention have been complied with or applied fairly. We are satisfied that in addition Art. 5(1) contemplates judicial scrutiny of those laws which relate to arrest and detention, and permits the court to strike down such laws if they cannot be objectively justified. Otherwise, the rights protected by Art. 5(1) could be treated by an unscrupulous administration as a dead letter. One example might be a rule which prevents bail being granted to anyone who is charged with an offence punishable by at least one month's imprisonment. A person denied bail in these circumstances could be said to have had his right not to be detained arbitrarily infringed. But what we are strongly inclined to conclude is that Art. 5(1) does not permit judicial scrutiny of other laws, i.e. those laws for which arrest and detention is authorised if they are broken. Those laws may well be struck down because they violate other specific rights protected by the Bill of Rights - for example, on the ground that they reverse the presumption of innocence (Art. 11(1)) or that they operate retrospectively (Art. 12(1)) or that they are discriminatory (Art. 22) - but we doubt whether they can be struck down under Art. 5(1).

20. This view is supported, we think, by international jurisprudence in the field. Thus, Art. 5 of the Bill of Rights is in identical terms to Art. 9 of the International Covenant on Civil and Political Rights ("the ICCPR"). Such research as we have been able to conduct has not revealed any case in which the distinction which we are inclined to draw has been rejected, i.e. the distinction between those laws which relate to arrest and detention (for which judicial scrutiny under Art. 5(1) is permissible) and those laws for which arrest and detention is authorised if they are broken (for which judicial scrutiny under Art. 5(1) is not permissible). Indeed, we think that the decision of the Human Rights Committee in Hugo van Alphen v. The Netherlands (Communication No. 305/1988, General Assembly Official Records, 45th Session, Supplement No. 40, 1990) supports rather than contradicts the distinction which we are inclined to draw.

21. Again, Art. 5 of the Bill of Rights is not dissimilar to Art. 5 of the European Convention on the Protection of Human Rights and Fundamental Freedoms ("the ECHR"). The jurisprudence on Art. 5 of the ECHR supports the distinction which we are inclined to draw. Thus, in a number of cases, the courts have scrutinised laws relating to arrest and detention for their compatibility with Art. 5 of the ECHR. Examples are Winterwerp v. The Netherlands (1979-80) 2 EHRR 387, Monnell and Morris v. The United Kingdom (1988) 10 EHRR 205 and Kemmache v. France (No. 3) (1995) 19 EHRR 349. However, no case was cited to us in which the courts have scrutinised laws for which arrest and detention are authorised if they are broken for their compatibility with Art. 5 of the ECHR.

22. In the Hugo van Alphen case, the Human Rights Committee said that the concept of arbitrariness in Art. 9 of the ICCPR is not to be equated with "against the law" but must be interpreted more broadly so as to include elements of inappropriateness, injustice and lack of predictability. That meant, said the Committee, that a remand in custody pursuant to an arrest which was lawful had not only to be lawful but reasonable in all the circumstances. This led the Privy Council in Fok Lai Ying v. Governor in Council (1997) 7 HKPLR 327 to assume, but without deciding, that this concept of arbitrariness should apply to Art. 14(1) of the Bill of Rights, which protected persons from the "arbitrary" or unlawful interference with their privacy, family, home and correspondence. This concept of arbitrariness is, in our view, entirely consistent with the distinction which we are inclined to draw. A remand in custody, for example, may be struck down if it is an unreasonable application of the law which permits detention pending trial. But we do not see why Art. 5(1) of the Bill of Rights would justify the striking down of a remand in custody if the law permitting detention pending trial can be objectively justified and has been applied reasonably in the instant case - simply because one or more of the ingredients of the offence which the defendant is alleged to have committed cannot be objectively justified. At the risk of repeating ourselves, such an offence can be objectively justified unless it infringes one of the other rights protected by the Bill of Rights, such as the presumption of innocence.

23. Having said all that, it is not, in our view, necessary to reach a concluded opinion as to whether the view which we are inclined to take is correct. That is because we have reached the conclusion that, on the assumption that Art. 5(1) permits the court to scrutinise for arbitrariness laws which result in the arrest and detention of persons who break them, the "grievous harm" rule is not arbitrary. It can be objectively justified. The nature of that justification has been identified even by the critics of the rule. Lord Edmund-Davies in Cunningham made no secret of the direction which he thought the law should take. He said at pp. 582G-538A:

But he added at p. 583A (and this is the justification for the "grievous harm" rule):

And although Lord Steyn strongly disagreed with the "grievous harm" rule, he too identified the justification for its retention. In Powell at p. 15C, having asked rhetorically what the justification for the rule was, he said that the argument was that:

It is unnecessary for us to declare where we stand in this debate. It is sufficient for us to state that the justification for the "grievous harm" rule is such that the rule cannot be described as arbitrary. The rule represents a respectable view as to what the law of murder should embrace, even though views may differ on the topic, and even if it results in a different mens rea being required for a defendant charged with murder, and one charged with attempted murder.

24. The law of murder in Hong Kong does not make the distinction which exists in other jurisdictions - those jurisdictions which recognise first-degree murder, second-degree murder and so forth. What our law does is to distinguish between certain forms of homicide, categorising some as murder and others as manslaughter. We recognise, of course, that the law of manslaughter catches anyone whose unlawful act results in the death of another. We accept that that could be widened to embrace all persons whose acts cause death, save for those who intend to kill their victims or who realise that death might result from their acts. But the fact that those who intend merely to cause really serious bodily injury can be accommodated in the law of manslaughter does not, of itself, mean that they should not be convicted of murder.

25. Lord Steyn has approached the question from the other end of the spectrum. In Powell, he said at p. 15C-D that the conventional justification for the "grievous harm" rule

Lord Steyn had to accept the fact that murder attracted a mandatory life sentence because there was no constitutional basis on which it could be challenged in England at the time. The position may be different when the Human Rights Act 1998 comes into force. But if the need for a mandatory life sentence for murder is questioned, the argument in favour of classifying different forms of homicide becomes less apparent.

26. In these circumstances, there is, we think, no compelling reason for assigning to the category of murder only those persons who kill their victims with an intent to kill or with some awareness that death might result from their actions. Of course, if they could be convicted of manslaughter, they would no longer be liable to the mandatory sentence of life imprisonment. But that is not a justification for declaring the "grievous harm" rule to be incompatible with Art. 5(1). Whether life imprisonment should be the mandatory sentence for murder in all circumstances is a different question, and that can only be raised if and when the Appellant's conviction for murder is upheld. Our reservations as to the ambit of Art. 5(1) would plainly not apply to such an argument, though it is important to remember that even if the "grievous harm" rule was not retained and a conviction for murder was limited to persons who intend to kill or who foresee death as a probable result of their actions, there would still be differing degrees of culpability for the even more limited category of persons who would then be convicted of murder. An intent to kill covers both extremes of the moral spectrum. Contrast the case of the bank robber who cynically shoots a bank teller in cold blood and the son who humanely puts his dying mother out of her misery by giving her a lethal injection.

27. Finally, we note the point made by the critics of the "grievous harm" rule that it results in people being branded as murderers when they should not be. Thus, Lord Mustill said in Attorney-General's Reference (No. 3 of 1994) that the "grievous harm" rule is "not the popular conception of murder" (p. 250E), and Lord Steyn in Powell said that the rule means that "a defendant may be convicted of murder who is in no ordinary sense a murderer" (p. 14H). We are not convinced that there is a popular conception of murder, in which non-lawyers believe that a defendant has to have intended to kill his victim before he can be convicted of murder. We suspect the popular conception of a murderer (if there is one, which we are minded to doubt) is that of a person who kills his victim intending that some harm should come to him. But ultimately we do not believe that the popular conception of murder (assuming that it can be identified) should inform the debate. The question is what the law of murder should be, rather than what non-lawyers think it is.

28. For these reasons, we have concluded that the "grievous harm" rule does not infringe Art. 5(1) of the Bill of Rights.

Equality before the courts

29. Art. 10 of the Bill of Rights is headed "Equality before courts and right to fair and public hearing". It provides:

Mr Mullick's argument focused on the first sentence of this Article. The argument is that equality before the courts requires persons of the same degree of culpability to be treated in the same way. The corollary of that rule is that persons whose degrees of culpability differ should not be treated in the same way. Since the "grievous harm" rule results in persons of different degrees of culpability being treated in the same way, the principle of equality is infringed.

30. We have some difficulty understanding why, simply because persons of the same degree of culpability should be treated in the same way, persons of different degrees of culpability should be treated differently. But leaving that aside, we have no doubt that this argument is not properly engaged by Art. 10. Art. 10 does not relate to the substance of the criminal law. It relates instead to the criminal process. It provides guarantees for a fair trial and requires all persons involved in the criminal process to be treated in terms of procedure on terms of equality. An examination of Art. 10 as a whole justifies no other conclusion.

31. Again, Mr Mullick did not develop any argument to support his contention that the ambit of Art. 10 should be treated as including the substance of the criminal law. For his part, Mr Bruce, to whom we were much indebted for his valuable research and helpful submissions, told us that he was unable to find any authority on Art. 10, or on the identical wording of Art. 14(1) of the ICCPR, or on the similar wording of Art. 6(1) of the ECHR, which supported the assumption on which the argument for the Appellant proceeded.

The presumption of innocence

32. Art. 11(1) of the Bill of Rights protects a defendant's right to be presumed to be innocent until his guilt has been proved. It provides:

The "grievous harm" rule is said to infringe this right, because it presumes that which the law would otherwise require the prosecution to prove. The argument therefore proceeds on the premise that where a defendant is charged with murder, the law recognises that the prosecution should be required to prove that the defendant intended to kill the deceased. However, the prosecution is relieved of proving that, because the law conclusively presumes that the defendant intended to kill the deceased if it is proved that he intended to cause the deceased really serious bodily injury.

33. In our view, the fallacy in this argument lies in the premise on which it is based. It is not the case that the law recognises that the prosecution should be required to prove that the defendant intended to kill the deceased. The law may have recognised that when the common law of murder was in its infancy. In that connection, we note the history of the common law of murder traced by Lord Diplock in his dissenting speech in Hyam v. Director of Public Prosecutions [1975] AC 55. But whatever the history of the common law may have been, the rationale underlying the modern law of murder is that an intention to cause really serious bodily injury should be regarded as sufficient in its own right. We have already referred to the speeches of Lord Edmund-Davies in Cunningham and Lord Steyn in Powell in which the rationale underlying the "grievous harm" rule was explained. Accordingly, the modern law of murder proceeds on the premise that a conviction for murder can justifiably rest upon an intention to cause the deceased really serious bodily injury, rather than on the premise that an intention to cause the deceased really serious bodily injury should be regarded as an acceptable method of proving that the defendant intended to kill the deceased.

The Canadian cases

34. There have been four relevant cases in Hong Kong in which the "grievous harm" rule has been challenged at first instance: HKSAR v. Pun Ganga Chandra [1999] 2 HKLRD 648 (Gall J), HKSAR v. Chan Chui Mei [1999] 3 HKC 502 (Nguyen J), HKSAR v. Mok Tsan Ping (HCCC 427/98) (Verina Bokhary J) and HKSAR v. Yik Po Man (HCCC 251/99) (Beeson J). In each of those cases the challenge failed, but in the course of argument considerable reliance had been placed on two Canadian cases: R. v. Vaillancourt (1987) 47 DLR (4th) 399 and R. v. Martineau (1990) 58 CCC (3d) 353. Since those cases were heavily relied on at the hearing before us, we propose to comment on them.

35. In Vaillancourt, the Supreme Court of Canada had to consider the constitutionality of the provision of the Canadian Criminal Code which declared causing death to a person in the course of committing or attempting to commit robbery while he uses or has on him a weapon to be murder. The offence created by this provision was not dependent on proof that the defendant intended either to kill or harm his victim or that the defendant foresaw that his victim might die as a consequence of his conduct. The offence reflected an uncharacteristic survival into modern times of the "felony murder" rule, which was abolished in England by section 1 of the Homicide Act 1957 and in Hong Kong in 1963 by section 2 of the Homicide Ordinance (Cap. 339). This provision was said to infringe section 7 of the Canadian Charter of Rights and Freedoms, which provides:

36. The principle majority judgment was delivered by Lamer J (as he then was). Having criticised the "felony murder" rule, he concluded at p. 415 as follows:

Lamer J then analysed the provision which was said to infringe section 7 and concluded that it did indeed permit a defendant to be convicted on the basis of something less than proof beyond reasonable doubt of objective foreseeability.

37. The "grievous harm" rule is, of course, a long way from the "felony murder" rule. The provision which was impugned in Vaillancourt was a provision which did not even require the prosecution to prove that the defendant intended to cause his victim any harm at all. At the heart of Lamer J's reasoning was the belief that "there must be some special mental element with respect to the death before a culpable homicide can be treated as murder". The "felony murder" rule does not have that special mental element. Lamer J thought that objective foreseeability provided that special mental element, but he did not address (because he did not have to) whether an intention to cause harm should be sufficient. The fact that Lamer J thought that objective foreseeability provided that special element does not mean that an intent to cause really serious bodily injury could not also constitute the "special mental element with respect to the death" which was necessary.

38. Moreover, it is to be noted that the "special mental element with respect to the death" had, under the Canadian Charter, to accord with the principles of fundamental justice. Under the Bill of Rights, the special mental element with respect to the death has to be such as not to render detention for murder arbitrary. We believe that the modern rationale for the "grievous harm" rule which we have identified justifies treating an intention to cause really serious bodily injury as the "special mental element with respect to the death" so as to satisfy the prohibition on arbitrariness in the Bill of Rights.

39. The same reasoning applies to what Lamer J said about the impugned provision infringing the presumption of innocence. The presumption of innocence, he said, is infringed if the prosecution is relieved from proving, not merely one of the existing ingredients of the offence, but what should be one of the ingredients of the offence. Since objective foreseeability should have been one of the ingredients of murder, but was not, the presumption of innocence was infringed. For the reasons we have given, we think that the modern rationale for the "grievous harm" rule is sufficient to justify an intention to inflict really serious bodily injury being treated as the "special mental element with respect to the death". In those circumstances, the argument that the "grievous harm" rule infringes the presumption of innocence disappears.

40. In Martineau, the Supreme Court of Canada dealt with the question which it was not necessary to decide to dispose of the appeal in Vaillancourt - namely whether objective foreseeability was sufficient, or whether nothing less than subjective foreseeability would do. The Court decided that murder had to meet the higher threshold if the law of murder was to conform to the principles of fundamental justice. We do not think that the Martineau decision adds anything to debate in Hong Kong. If the modern rationale for the "grievous harm" rule justifies treating an intention to cause really serious bodily injury as the "special mental element with respect to the death", the fact that other jurisdictions regard nothing less than subjective, as opposed to objective, foreseeability as the requisite mental element is not to the point.

Conclusion

41. This judgment has not addressed the question whether the mens rea required for murder committed by a secondary offender infringes the Bill of Rights. The resolution of that question has to wait for another occasion. The Appellant in the present case was alleged to have been the primary, indeed the only, offender. For that reason, this judgment has addressed only the mens rea required for murder committed by such an offender, i.e. the "grievous harm" rule.

42. Finally, we have not mentioned in this judgment the provisions of the Basic Law and the ICCPR which were invoked by Mr Mullick. That is because they add nothing of substance to the articles in the Bill of Rights which are relied upon. If the "grievous harm" rule survives the challenge based on Arts. 5(1), 10 and 11(1) of the Bill of Rights, it will survive any challenge based on the equivalent rights protected by the Basic Law and the ICCPR. For the reasons we have endeavoured to give, the "grievous harm" rule is neither inconsistent nor incompatible with the Bill of Rights, and the ground of appeal which challenges the conventional direction which the judge gave to the jury on mens rea must fail. We direct that this appeal be re-listed for hearing on a date to be fixed after consultation with counsel's diaries for the other grounds of appeal to be addressed.