HKSAR v. WONG KAM PO

CACC 78/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 78 OF 1999

(ON APPEAL FROM HCCC 433 OF 1997 & 8 OF 1998)

____________________________________

________________

J U D G M E N T

________________

Hon Stock JA (giving the judgment of the Court):

1. Mr Haynes, upon conclusion of today's hearing as to sentence, seeks on behalf of D8 a Certificate under Section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, that two points of law of great and general importance are involved in the judgment of this Court delivered on 20 July 2001, in relation to the applicant (D8).

2. Before going to the substance of the application and the questions which he poses, we should record that his application, such as it is, was received by this Court yesterday evening and there have been serious doubts as to its procedural correctness, and Mr Haynes has sought to pray in aid a practice direction in which counsel are encouraged to give notice of their applications immediately upon delivery of the judgment. We have decided that, despite these procedural questions, we were prepared to hear Mr Haynes on the merits of his application.

3. The first question is:

"Whether expert evidence from a child psychiatrist is admissible as to specific factors which may support the defence of a 14 year old child as to that child's specific intent at the time of the actus reus."

The question itself is far too broad and begs further questions, because the admissibility of expert evidence will depend on the specific factor to which he seeks to allude. So, for example, if the factor is a disease of the mind in the defence of diminished responsibility, then of course the evidence will be admissible. But, all that aside, the attempt to seek a Certificate misses, we suggest, the essential point of our judgment in relation to the expert evidence, which can be found in paragraphs 127 and 128 of the judgment in respect of conviction, where we referred to the central question which Dr Ho was addressing and its relevance or, as we saw it, irrelevance, to the issue which the jury had, in the case of D8, to decide. We decided that that evidence was of no relevance to that issue. Accordingly, we decline to grant the Certificate in respect of the first question.

4. The second proposed question reads as follows:

"Whether a direction based on section 65A of the Criminal Procedure Ordinance should be given by the trial judge where a defence of lack of specific intent is raised in circumstances where the actions of the defendant and the consequences of those actions are so grave that there is a risk that the jury may automatically infer that 'he intended ... a result of his acts ... by reason only of it being a natural and probable consequence of those acts.'"

As Mr Tam has correctly argued, in his helpful brief skeleton argument in opposition to this application, this court did not decide as a matter of law that a trial judge should never provide the jury with a direction framed with section 65A of the Criminal Procedure Ordinance in mind. What we decided can be found at para 123 of our judgment. Our decision is case specific; in other words, that a section 65A direction was not necessary in this particular case, given the directions that were in fact given.

5. It seems to us that Mr Haynes's grievance is not a question of a point of law of great and general importance but rather a suggestion that by excluding such a direction in this particular case an injustice has been occasioned. If that is the true thrust of the grievance, then his remedy in terms of making an application for leave lies elsewhere.

6. Accordingly, the application is declined.