HKSAR v. CHAN TAM FU

CACC 363/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 363 OF 2014

(ON APPEAL FROM HCCC 546/2013)

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J U D G M E N T

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Hon McWalters JA (giving the judgment of the court):

Introduction

1.  On 10 April 2013, the applicant killed his wife.  He was subsequently charged with murder, contrary to common law and punishable under section 2 of the Offences against the Person Ordinance, Cap 212. 

2.  The applicant was tried in the High Court before Barnes J and a jury on 6 October 2014.  In his defence he relied on provocation to reduce his criminal liability to manslaughter.  On 14 October 2014 the applicant was convicted by the verdict of the jury of murder and in accordance with law sentenced to life imprisonment.

3.  He subsequently applied for leave to appeal against conviction, and his application was heard on 21 July 2015. On 8 December 2015 his application for leave to appeal against conviction was granted but, for the reasons set out in our judgment, we dismissed his appeal.

4.  On 3 February 2016 the applicant filed a Notice of Motion with the court supported by an affirmation.  By his Notice of Motion the applicant applied to the court for an order certifying that his case involved points of law of great and general importance.  On 17 February 2016 Master Tam of the High Court directed that the application be dealt with by paper and that the applicant and the respondent file submission by certain dates.  The respondent was required to file a written submission by 16 March 2016 and did so.  The applicant was required to file any written submission in reply on or before 30 March 2016.  No submission in reply from the applicant has been received.

The application

5.  Before setting out the details of the applicant’s application it is necessary to recite some of the facts of the case in order to place the applicant’s submission in context.  The applicant and his wife had been estranged and were living apart at the time of her murder.  The applicant took a knife with him when he left his residence on the date of the murder and travelled to the place where his wife worked.  He maintained that he was so distressed that he intended to kill himself in front of his wife with this knife.  However, when he confronted his wife at her place of work she attacked him with a tray and her actions, and the words she spoke to him, provoked him into stabbing her.

6.  As the applicant is legally unrepresented and has not filed any submission in response to that of the respondent the only material before us is what he has said in his affirmation which he filed in support of his Notice of Motion.  The contents of that affirmation are in Chinese but, as translated, the applicant says:

“The grounds of my application for leave to appeal to CFA: The trial judge was in error. Consequently, the jury was misled by a lot of mistaken reasoning. I only killed the deceased because she hit me first causing me to lose my head. I carried the knife for committing suicide. I never had the faintest intention to kill her. During the record of interview, I told the powerful person/persons in the police that I always brought with me the knife because I was ready to kill myself at any time. But I was not allowed to say it in that way. Therefore, it was not a voluntary record of interview. One hour before I killed the deceased, my mother-in-law called and snapped at me for being old and poor, urging me to jump to my death. Because of the provocation I had a face-to-face talk with the deceased. Completely out of the blue, she hit me causing me to lose my head. This is the very reason I screwed up. The way that the trial judge assessed me was a belittlement of me, a small citizen. Moreover, there are inconsistencies in the (prosecution) case. The decisions of the trial judge are unfair to me. I ask for retrial. Further, the powerful person/persons in the police got some false witnesses to testify against me. There are contradictions (in their testimonies).

Respectfully submitted!”

Discussion

7.  It is immediately apparent from this affirmation that the applicant does not ask that this court certify any point of law of great and general importance that is involved in our decision.  The applicant is simply complaining about the unfairness of his conviction. Insofar as he has any basis to appeal to the Court of Final Appeal it can only be on the substantial and grave injustice limb. 

Conclusion

8.  There being no point of law of great and general importance that we are asked to certify we decline to do so and dismiss the application.