HKSAR v. LAM CHI KWONG

FAMC No. 10 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 10 OF 1998 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC 354 OF 1997)

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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.

2. On 3 June 1997 the applicant was convicted of murder after a jury trial in the High Court. His appeal against conviction was dismissed by the Court of Appeal on 25 March 1998. The applicant then asked the Court of Appeal to certify points of law of great and general importance for consideration by the Court of Final Appeal but this was refused. So the applicant renews the application before us under s32(3) of the Hong Kong Court of Final Appeal Ordinance asking us at the same time to grant leave out of time to appeal.

Background facts

3. The facts giving rise to the conviction for murder are well summarised in the Court of Appeal's judgment as follows:

" The Applicant and his brother operated a car park. Disputes had arisen over the years with others. The Applicant bought a hand gun and ammunition and kept it at the car park.

On 2nd April 1996, a dispute arose between the deceased's group and the Applicant's brother. After this, the Applicant spoke to his brother. About 15 minutes later, the Applicant went armed with the gun and when he was not less than 24 inches from the deceased, he fired a well-aimed shot into the deceased's chest. The Applicant then left the scene and went into hiding. When he was eventually found, following an attempt to commit suicide, the Applicant gave an account to the police in which he said that he had walked up to the deceased and said to him 'Don't make so many troubles'. He then took out the gun that he was carrying, wanting to scare the deceased. Unpredictably the deceased had thrown himself at the Applicant and in the 'scrimmage' the Applicant 'had pulled the trigger and discharged one shot'.

However, before his attempt to commit suicide he had written a letter in which he said 'I went near (the deceased) and fired one shot'.

Two ballistics experts agreed that the minimum firing range for the fatal shot was 24 inches away from the body. This range accorded with the evidence given by two eye-witnesses who saw the Applicant pull out a gun and fire it when he was between 3 and 5 ft. away from the deceased.

The defence at trial did not deny that the Applicant had committed an unlawful act resulting in the death of the victim, in that he had at the very least pointed a loaded gun at the deceased. The defence relied firstly on a lack of intent at the time when the gun was fired and secondly on a defence of manslaughter by reason of diminished responsibility."

The Court of Appeal's judgment

4. The Court of Appeal, in entertaining the appeal, found that in one aspect of the judge's summing-up there was a material irregularity. They concluded, however, that no miscarriage of justice had actually occurred so they applied the proviso to s83(1) of the Criminal Procedure Ordinance and dismissed the appeal.

The "material irregularity"

5. The point arose in this way: In his address to the jury defence counsel had used inflammatory language such as "he is on trial for his life and you hold his life in your hands". Whilst this was clearly inappropriate, the judge could well have let the matter pass without comment. Instead, he thought it necessary to caution the jury not to allow feelings of sympathy to influence their decision. Whilst this approach cannot be criticized, it was the way in which the judge sought to perform this task which gave rise to the ground of appeal in the court below. What the judge said was this:

"[Defence counsel] said to you that you have to bear in mind that the accused is on trial for his life. You are not entitled to take that into consideration. You can only take that into consideration when you assess the evidence of the accused himself. It can have no bearing on the truth of the evidence from other witnesses ... But it does have a place when you consider the evidence given by the accused because it is his evidence, and his motivations are of importance to you."

6. The point taken in the court below - and now repeated before us - is this: The judge was in effect telling the jury that the applicant had strong reasons to lie in the witness box, given the serious consequence of a conviction for murder.

7. Of course, the judge did not in fact say to the jury that the applicant had strong reasons to lie. This was a forensic point made by counsel in criticizing the passage of the summing up impugned. Not every piece of clumsiness or inappropriate language on the part of a trial judge amounts to material irregularity. The Court of Appeal thought it was in this case, but applied the proviso to s83(1) of the Criminal Procedure Ordinance and dismissed the appeal. They were well within their right to do so. There is no point of law of great and general importance for consideration by the Court of Final Appeal.

Violent disposition

8. Another point taken in the court below, on which we are asked to certify a point of law for the Court of Final Appeal's consideration, is this: Because diminished responsibility was advanced by the defence, evidence was called on the applicant's behalf concerning his violent behaviour in the past. The judge, in his summing-up, thought it right to redress the balance by cautioning the jury concerning the evidence of his violent disposition. The judge said this:

"You have heard from him and have seen in Professor Wong's report, incidents that have happened in his past. You cannot look at those and say because he has been violent on other occasions, he must have intended to do it on this occasion. You must look at the facts of this particular case, the evidence that you have heard, and make up your mind from the facts that have been placed before you. You can make no assumptions ... that he must be guilty because he has been violent in the past."

9. The point taken by counsel in the court below is this: The caution has been over-stated; whilst the word "might" would have been appropriate and would have conveyed the meaning of what the judge was trying to say, the use of the word "must" amounted to a misdirection. The Court of Appeal brushed this aside as mere sophistry. Rightly so. The point is now put slightly differently: The jury should have been told to disregard past violence altogether in considering the applicant's intention at the time of the shooting. But this would have made the summing-up even more complex. In our judgment there is no merit whatever in the point.

Conclusion

10. We have not considered it necessary to set out the three so-called questions of law of great and general importance in this determination; they can be found in the Court of Appeal's ruling of 27 March 1998. The Court of Appeal was right in refusing to certify. The application is dismissed.