HKSAR v. CHAN CHI SANG

CACC 646/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 646 OF 1998

(ON APPEAL FROM HCCC 54 OF 1998)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

1. This is an application for certificates under section 32 of the Court of Final Appeal Ordinance, Cap. 484, that points of law of great and general importance are involved in the decision of this court which was handed down on 4 July 2001.

2. The 1st Applicant sought a certificate originally upon six points. However, following discussion with counsel, it is accepted that two of those are really part and parcel of the same point. We propose to grant a certificate on what will now become three separate points. They are as follows:

(1) Is the common law rule, that a person can be convicted of the crime of murder on proof only that he had intended to cause the deceased grievous bodily harm, in contravention of Articles 25, 28, 39 and 87 of The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, (Basic Law), and Articles 5(1), 5(4) and 11(1) of the Hong Kong Bill of Rights Ordinance, Cap. 383, or before a person can be convicted of the crime of murder must the prosecution prove nothing less than the accused intended to kill or at the very least have contemplated that death would result from his acts?

(2) Is section 2 of the Offences Against the Person Ordinance, Cap. 212, in so far as it provides for the mandatory sentence of life imprisonment on conviction for the crime of murder, in contravention of Article 25 of the Basic Law, and Articles 5(1), 5(4) and 6(3) of the Hong Kong Bill of Rights?

(3) Is the provision in section 83G of the Criminal Procedure Ordinance, Cap. 221, which provides that a person convicted of the crime of murder does not have the right of appeal against his sentence, in contravention of Article 25 of the Basic Law and Articles 5(1), 5(4), 6(3) and 11(4) of the Hong Kong Bill of Rights?

3. There were originally on the Notice of Motion in relation to the 1st Applicant two further questions, which were numbered (2) and (4) respectively, on which we decline to grant a certificate.

4. Mr Haynes, on behalf of the 2nd Applicant, put forward originally five points on which he asked this court to give a certificate. In fact, following discussion with Mr Haynes, he is content that the points which were covered by those in Mr Mullick's Notice of Motion on which we have granted a certificate should be formulated in the same way. We grant the 2nd Applicant a certificate on those same points.

5. There is, however, a further point which is raised by Mr Haynes arising out of the judgment of this court on 4 July 2001. Originally formulated, the point was:

"Whether the rule that a secondary party may be convicted of murder on the basis that he foresaw a risk of death or grievous harm is incompatible with Article 5(1) and or Article 11(1) of the Hong Kong Bill of Rights."

6. We have canvassed with Mr Haynes whether this adequately formulates the true question to be argued. As a result of discussion with counsel, the following alternative has been formulated on which we are prepared to certify:

"Whether the rule that a secondary party may be convicted of murder even if he did not himself intend to kill or cause grievous bodily harm but participated in the act which caused death realising or contemplating as a real risk that the primary party might carry out or was carrying out the act with intent to kill or cause really serious bodily harm is incompatible with Article 5(1) and or Article 11(1) of the Hong Kong Bill of Rights."

7. Mr Haynes also raised three points which arise from an earlier judgment of this court in the same proceedings. The judgment was given on 13 June 2000. On his Notice of Motion, the points raised were originally numbered (3), (4) and (5). We decline to grant a certificate on these points.