HKSAR v. Chan Kam Shing

CACC 231/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 231 OF 2014

(ON APPEAL FROM HCCC NO. 365 OF 2013)

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JUDGMENT

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Hon Lunn VP (giving the Judgment of the Court) :

1.By a notice of motion filed with the Court on 7 July 2015 the applicant seeks an order for the grant of a certificate pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 that the following points of law of great and general importance are involved in the decision of this Court dated 30 June 2015 dismissing his application for leave to appeal against his conviction of murder:

1)Whether D can be convicted of the murder of X by joint enterprise with other persons where:

(a) D was not a principal in that he took no part in the actus reus constituting the murder of X;

(b) Was not an accessory in that he did nothing to counsel, procure, assist or encourage; and

(c) The murder of X did not occur as a ‘parasitic’ crime committed in the course of another crime which D committed together with those other persons:-

2)Whether, where D’s liability for the murder of X in joint enterprise was on the basis that D was a party to an agreement to carry out a course of criminal conduct and he took some steps to further the enterprise, D cannot be convicted unless:-

(a) The “enterprise” means the murder of X;

(b) The “agreement to carry out a course of criminal conduct” means an agreement to murder X (and not merely an intention of looking for members of a particular class of persons and attacking such persons if and when they are found); and

(c) D participated by doing some act in furtherance of the agreement to murder X.

2.We are satisfied that points of law of great and general importance are involved in our decision and we certify the questions posed.

Mr Wesley Wong, SC, DPP(Ag) & Mr Raymond Cheng, SPP of the Department of Justice, for the respondent

Ms Margaret Ng instructed by Cheung, Chan & Chung, assigned by Director of Legal Aid, for the applicant