HKSAR v. LAI YIP KIE

FAMC No. 2 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2 OF 1998 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC 367 OF 1996)

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D E T E R M I N A T I O N

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Mr Justice Litton PJ:

1. This is the determination of the Appeal Committee on an application for leave to appeal brought under s32(1) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.

2. The applicant was convicted of murder on 11 June 1996 after trial in the High Court. This arose out of a fire in a single-room unit in a domestic block in Lower Ngau Tau Kok Estate, Kowloon, which occurred in the early hours of 8 September 1995. The fire was deliberately started by the second defendant, at the instigation of the applicant, the first defendant. Two people, the occupants of the unit, were killed in the fire.

3. On 29 January 1997 the applicant's application for leave to appeal against conviction was heard by the Court of Appeal. The main ground relied upon, and now repeated in support of the application before us, is that the judge should have left the issue of provocation to the jury. Provocation was not the defence run at the trial: it was total denial of any wrongdoing. The Court of Appeal refused leave. It said that the evidence at the trial, far from indicating loss of self-control, showed that the applicant's acts were premeditated: The applicant had hired the 2nd defendant to set fire to the unit and had acted in cold blood. The Court of Appeal therefore concluded that the trial judge was right not to leave provocation to the jury.

4. There is no merit in this application. It is dismissed.

Representation: