HKSAR v. YIK PO MAN

HCCC 251/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 251 OF 1999

____________

_____________

D E C I S I O N

_____________

BILL OF RIGHTS - IMPLIED INTENTION

1. The accused in this case faces one charge of Murder and a second charge of Preventing the Lawful Burial of a Body. No plea has been taken, nor has a jury been empanelled. A preliminary point has been raised and argued by the defence in relation to the first charge only.

2. It is submitted on behalf of the accused that the Common Law definition of Murder insofar as it contains the element of implied intention offends against the tenets of fundamental justice and thus against Article 5 of the Bill of Rights and Clause 11(1) of the Basic Law. If the defence argument succeeds the court is enjoined to direct the jury, if and when such stage is reached, that the accused may be convicted of Murder only if they are satisfied beyond reasonable doubt that the accused at the time of the killing had the intention to kill, or the subjective realisation that the deceased might die or be killed as a result of her actions. The accused in this case is charged as a principal party, not as a secondary party.

3. I note that this argument has been raised in the Court of First Instance on three previous occasions and in each case, with slightly varying reasons, the judges have ruled against the argument. In each case, as in this one, the history and law relating to the offence of Murder and its development have been canvassed. For that reason I do not propose to repeat all the material put before me at length, but will attempt to summarise the salient points of Mr Mullick's detailed and carefully wrought argument.

Definition of Murder

4. The definition of the offence of Murder at Common Law, which is the definition used in Hong Kong, is as follows: Murder is committed where a person of sound mind and discretion unlawfully kills any reasonable creature with intent to kill or cause grievous bodily harm. It was preserved in that form by Art. 8 of the Basic Law which article does not prevent the judiciary from amending inter alia the Common Law.

ARGUMENT

5. The defence submits that before a person can be convicted of Murder the prosecution must prove an intention to kill, or at the least the subjective foreseeability that death might result from his or her acts.

6. It is also submitted that to convict a person of Murder on the basis that he or she was proved only to have inflicted grievous bodily harm is contrary to Arts 28 and 87 of the Basic Law and Arts 5, 10 and 11 of the BOR. Those Articles are set out hereunder:

7. Article 5(1) of the HKBOR states as follows:-

8. The relevant part of Article 10 of the HKBOR reads as follows:-

9. Article 11(1) of the HKBOR provides that:-

10. Art. 5(1) of the BOR repeats Art. 9(1), Art. 10 of the BOR repeats Art. 14(1) and Art. 11(1) of the BOR repeats Art. 14(2) of the International Covenant on Civil and Political Rights (COVENANT).

11. Article 28 of the Basic Law provides:

12. Article 87 of the Basic Law holds that:

13. It was submitted that the present description of the crime of murder is unconstitutional in its effects because it permits conviction on an implied intention to kill and thus offends against, in particular Art. 11(1) of the BOR because it creates a form of constructive liability on the part of the accused. Further it was argued that such description was not justified on the principles of proportionality or rationality, as the mandatory sentence of life imprisonment was imposed irrespective of the degree of criminal culpability, was arbitrary in nature and thus offended Art. 5(1) HKBOR and Art. 28 of the Basic Law.

In Hyam v. DPP[3] [1975] AC 55 Lord Diplock, in a dissenting judgment, reviewed the development of the Common Law in relation to the offence of Murder, and he and Lord Kilbrandon made various suggestions about the reform of the law of homicide to take account of the difference in gravity of one case from another according to the intention underlying the commission.

14. Similar discussions of possible, or desirable, reforms of the law of homicide can be found in:

15. I note that although legislative action in the 20th century resulted in some changes to the common law relating to Murder e.g. repeal of the felony-murder case; creating a defence of diminished responsibility, the matters examined in the cases referred to have not resulted in any reforms along the lines suggested as desirable. However, I agree with Mr Mullick that considerable progress was made in such examination.

16. The principles in R. v. Siu Yau-ming [1992] 1 HKCLR 127 relating to interpretation of the Hong Kong Bill of Rights show the court can derive assistance from decisions or domestic courts in jurisdiction, such as the United States of America and Canada which have constitutionally entrenched Bills of Rights.

17. Counsel for the accused relied heavily on two decisions of the Canadian Court of Appeal, recommending them to the court as being highly persuasive authority because of the similarity between the HKBOR and the Canadian Charter. In each of those cases

the court was concerned with the interpretation of section 213 of the Canadian Criminal Code in the light of relevant provisions of the Canadian Charter.

18. Section 213 provided that a person could be convicted of murder when causing the death of another during the commission of certain specified offences - effectively the offence of felony murder - a category of offence that disappeared from the Hong Kong by amendment of the Homicide Ordinance, in 1963.

19. It did not matter whether death was intended, or whether or not the perpetrator knew that death was likely to be caused as long as he meant to cause bodily harm in order to commit the offence, or to flee after committing the offence and death resulted from such harm.

20. Vaillancourt held that the section offended Section 7 of the Charter (equivalent to, although worded slightly differently from, S. 5(1) HKBOR) because "fundamental justice" referred to in that section forbade the combination of absolute liability and deprivation of liberty; that a minimal mens rea was required to correspond to the crime and that Section 11 was offended against because instead of proof of at least objective foreseeability, the legislature had substituted proof of certain forms of conduct causing death.

21. Martineau took the matter even further as the majority of the Court (6-1) held that in the absence of an intent to kill subjective foreseeability of death was the proper test.

22. Given the similarities between the Hong Kong guarantees of liberty and security of the person and the preservation of the presumption of innocence and the similar provisions in the Canadian Charter I accept that this court can have regard to the cases of Vaillancourt and Martineau in considering the matters raised on behalf of the accused. I bear in mind however the strictures in A.G. v. Lee Kwong-Kut [1993] AC 951 against uncritically adopting constitutional solutions from other countries.

23. However I must say that I find them of limited help in deciding this matter concerned as those cases are with striking down the offence of constructive murder, rather than the matter which this court is really required to consider, whether an intention to cause grievous bodily harm or the intention of a secondary party being sufficient to establish Murder, offends against the presumption of innocence or against the principle of liberty and security of the person.

24. In my view it cannot be said that to have different forms of intention for Murder offends against the presumption of innocence. The law relating to intent for Murder, as it now exists, is clear and predictable and it cannot be said that the application of that law is arbitrary so that it offends against the concept of fundamental justice. A jury must be satisfied beyond reasonable doubt of the guilt of the accused by proof of a direct intention to kill, or to cause grievous bodily harm or, if certain circumstances pertain, an intention as a secondary party.

25. There may well be scope for amendment and streamlining of the law of homicide as it presently stands, in the manner that the Common Law has adopted different forms and permutations throughout its development. It is true that the cases of Hyam, Powell and Daniels and Cunningham indicate the type of change that might be considered preferable, or desirable.

26. Such impetus for change as is evidenced however, should be channelled through the legislature, which is primarily responsible for matters of policy, unless there are compelling reasons, or a demonstrated necessity for immediate changes to avoid injustice in any individual case. In such a situation action by a judge may be warranted.

27. In my view no such necessity has been demonstrated in this application.

28. It was argued for the accused that the existence of a mandatory life sentence for Murder was arbitrary and unlawful because it would be imposed irrespective of the degree of criminal culpability of the accused. It was suggested that the degrees of criminal culpability in the act or acts of another person, could be accommodated more rationally within flexible bands of sentencing such as exist for manslaughter.

29. The existence of a mandatory sentence does not of itself offend against the Bill of Rights. Nor in my judgment can it be held to be arbitrary or unlawful to apply the same sentence to a Murder conviction whether that conviction is founded on an intent to kill, or an intent to cause grievous bodily harm, or the intention as a secondary party.

30. It cannot be correct to submit as Mr Mullick does, that the sentence of life imprisonment "is arbitrary and cannot take account of the many degrees of gravity and culpability of offender".

31. The word "arbitrary" has a number of meanings none of which accord with Mr Mullick's use of it in the context of his argument.

32. The sentence is not based "on mere opinion or preference as opposed to the real nature of things". Nor can the imposition of such sentence be described as "capricious, unpredictable or inconsistent". It is not "despotic, or tyrannous, or dependent on will or pleasure".

33. The sentence is prescribed in a lawful manner by a properly constituted legislative body and can be imposed only if a jury convicts an accused of Murder. At present conviction can result from direct, or implied intention, or intention as a secondary party.

34. The law relating to intent is clear and predictable - it allows a citizen to so order his conduct as to avoid the offence. Whether it is desirable that the law as to intent be changed is a separate question, but the fact debate has taken place, or is continuing, does not make the present common law definition unconstitutional, or the offence arbitrary.

35. At the present time the law provides that the penalty for Murder, on whichever type of intention the conviction is based, is to be life imprisonment. There is special provision for offenders under the age of 18, whereby the judge can impose a determinate sentence, if, in his discretion such is appropriate.

36. There is scope for the legislature to relax the mandatory sentence for certain categories of convicted Murderer if there is a discerned need for it and if those expressed needs are channelled through the legislature.

37. However, in the present case, I cannot see that any case has been made out on behalf of the accused which shows that the mandatory sentence, if imposed, would be an arbitrary or unlawful detention in terms of Art. 5(1) of the HKBOR or of Article 28 of the Basic Law.

38. In summary, therefore, I rule against the accused on this preliminary point and confirm that if and when the need arises to direct the jury in this case, I shall give that direction on the basis of the Common Law definition of Murder as modified by the legislation and the cases, as is customarily given in this court.