KONG KWONG SAN v. HKSAR

FAMC No. 4 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 4 OF 1999 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC No. 135 OF 1998)

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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. This applicant was convicted of murder. The Court of Appeal affirmed his conviction. He now seeks leave to appeal to the Court of Final Appeal.

2. The Court of Appeal has certified the involvement of two points of law of great and general importance. They are the points raised in these two questions:

"(1) Whether having regard to the resumption of sovereignty over Hong Kong by the Peoples Republic of China, the Court of Appeal erred in concluding that it was bound to follow the opinion of the Judicial Committee of the Privy Council in Luc Thiet Thuan v. The Queen [1997] AC 131 (at p.145, per Lord Goff of Chieveley).

(2) Whether the Court of Appeal erred by failing to conclude that evidence of particular features and/or characteristics of the Applicant, including mental infirmity of the Applicant ["adjustment disorder"] was admissible in the assessment of whether the partial defence of provocation applied, as well as in the assessment of whether the partial defence of diminished responsibility applied, and in failing to conclude that the Jury should have been directed accordingly."

3. Of these two questions, the first is academic. As it happens, Luc Thiet Thuan is an appeal from Hong Kong in which the Privy Council affirmed the view taken by the Court of Appeal here. But even leaving that aside, whether or not the Court of Appeal was bound to follow the view taken in Luc Thiet Thuan, the applicant could not succeed in a final appeal unless the Court of Final Appeal took an opposite view.

4. The question is whether it is reasonably arguable that such opposite view is to be preferred. This is raised by the second certified question.

5. In Luc Thiet Thuan, the Privy Council held (at p.144) that:

"there is no basis upon which mental infirmity on the part of the defendant which has the effect of reducing his powers of self-control below that to be expected of an ordinary person can, as such, be attributed to the ordinary person for the purposes of the objective test in provocation".

Their Lordships so held upon the construction of s.4 of the Homicide Ordinance, Cap. 338, dealing with the partial defence of provocation. Moreover they felt fortified in that view by the existence of the partial defence of diminished responsibility made available by s.3 of the same Ordinance.

6. In R v. Smith [1998] 4 All ER 387 at p.399, the English Court of Appeal took the opposite view, saying that:

"The judge ought to have directed the jury that the evidence of [the psychiatrists] as to the appellant's mental state, and its impact on his response to provocation, depending on what the jury made of it, was relevant to the objective requirement of provocation. 'May the hypothetical reasonable man possessing the appellant's characteristics as found by the jury have reacted to the provocative conduct so to do what the appellant did?' We have not overlooked the fact that by their verdict the jury rejected the defence of diminished responsibility and must therefore have not been satisfied to the requisite standard of the evidence of [the psychiatrists]. On this issue, however, the onus of proof was on the appellant. On the issue of provocation it was for the Crown to satisfy the jury that the appellant had not been provoked."

7. That identifies the problem, not its solution. As to the burden of proof the Privy Council said (at p.146):

"If diminished responsibility were held to form part of the law of provocation, the extraordinary result would follow that a defendant who failed to establish diminished responsibility on the burden of proof placed upon him ... might nevertheless be able to succeed on the defence of provocation ... on the basis that, on precisely the same evidence, the prosecution had failed to negative, on the criminal burden, that he was suffering from a mental infirmity affecting his self-control which must be attributed to the reasonable man for the purposes of the objective test. This was precisely the result for which the defendant was contending before their Lordships. They do not consider that this could have been the intention of the legislature."

8. In our view, Luc Thiet Thuan is wholly convincing, and there is no reasonable prospect of the Court of Final Appeal disagreeing with the Privy Council on the point in question. It should be mentioned for the sake of completeness that in following Luc Thiet Thuan the Court of Appeal was not proceeding merely on the basis that it was bound by that decision. It said in terms that it also preferred the thinking in that case to that in Smith.

9. Leave to appeal is refused.