Read the full judgment text of FACC 1/2024 on BabelCite. This FACC judgment was delivered on 12 June 2024 before 張舉能 (終審法院首席法官), 李義 (終審法院常任法官), 霍兆剛 (終審法院常任法官), 林文瀚 (終審法院常任法官), 甘慕賢 (終審法院非常任法官).
Criminal law – homicide – diminished responsibility – reverse burden of proof – presumption of innocence – constitutional law – Basic Law Article 87(2) – Hong Kong Bill of Rights Article 11(1) – ICCPR Article 14 – statutory interpretation – read down – proportionality – Whether s.3(2) of the Homicide Ordinance (Cap 339) which places the legal burden on a murder defendant to prove diminished responsibility on a balance of probabilities is unconstitutional – sub-contract of family estate dispute over late grandmother's estate triggered shooting at park killing two relatives and wounding two – appellant arrested in nearby shopping mall – No; s.3(2) does not engage or impair the presumption of innocence – diminished responsibility is a partial excusal defence, not an element of murder, and the prosecution must first prove the actus reus and mens rea of murder beyond reasonable doubt before the s.3(2) burden arises – following HKSAR v Lam Kwong Wai, HKSAR v Hung Chan Wa, HKSAR v Ng Po On and Lee To Nei v HKSAR, the test is substantive rather than formal – the line of authority from R v Foye, R v Wilcocks, R v Lambert, Ali and Jordan, The People (DPP) v Heffernan and R v Chaulk supports the constitutionality of placing the persuasive burden on the defendant – arguendo, if the provision did engage the presumption of innocence, the limitation is justified under the Hysan four-step proportionality test – legitimate aim is to relieve the prosecution of an impossible burden of proving the defendant's internal mental state beyond reasonable doubt – means proportionate given subjectivity of the issue, need for expert evidence, defendant's right to refuse medical examination, and asymmetric disclosure obligations – English and Scottish Law Commissions have recommended retaining the persuasive burden – Court rejects Mr Aaron Yuen's submission that s.3(2) should be read down to impose only an evidential burden – Court of Appeal's dismissal of the appeal against conviction upheld – appeal to Court of Final Appeal dismissed unanimously – answer to certified question: 'No' – convictions for two murders and two counts of shooting with intent to cause grievous bodily harm upheld – life imprisonment on each murder count and 18 years' imprisonment (concurrent) on the shooting counts upheld.
Legal issues: Whether s.3(2) of the Homicide Ordinance (Cap 339) engages the presumption of innocence · Whether, assuming s.3(2) engaged the presumption of innocence, the limitation is proportionate and justified · Whether s.3(2) should be read down to impose only an evidential burden on the defendant
Outcome: Appeal against conviction dismissed unanimously. The Court of Final Appeal certified the answer to the legal question as 'No' and upheld the appellant's convictions and sentences.
Cited by 13 cases · Cites 2 cases