Case Document

100%Judiciary

CACC000309B/1999

CACC 309/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 309 OF 1999

(ON APPEAL FROM HCCC NO. 259 OF 1998)

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BETWEEN
	HKSAR	Respondent

	AND

	PUN GANGA CHANDRA	1st Applicant
	GURUNG SANTOSH	2nd Applicant
	GURUNG RAJENDRA BIKRAM	3rd Applicant

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Coram: Hon Mayo V-P, Stock J.A. and Yeung J. in Court

Date of Hearing: 26 September 2001

Date of Judgment: 26 September 2001

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1By a judgment handed down on 4 September 2001 this court, differently constituted and by a majority, dismissed the appeals of all three appellants against their convictions for murder.

2By notice of motion dated 21 September 2001, they each seek a certificate from this court under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 that a point of great and general importance is involved in the decision of this court.

3The questions which are postulated arise in relation to directions to be given to juries in cases of joint enterprise, in situations where it is suggested that an attack has been visited upon a victim with the use of a weapon, where the use of a weapon was not foreseen by the other attackers, but when, having seen the use of the weapon, they continued nonetheless in the attack. It is suggested that the questions of great and general importance arise in three regards. We do not set them out here in full because, we hope, that they may fairly be summarised thus:

1. Whether it is necessary for the judge to tell a jury that guilt of the primary offence may only attach to the secondary assailants if it be shown that they continued participating only after they realised that a weapon has been used which might cause death or serious harm, albeit with the realisation that there was a real risk of continued use, and then only if that weapon is in fact used again.

2. Whether the directions suggested in R v Uddin [1999] 1 Cr App R 319 in particular point (v) at p 329 which covers situations where a weapon is produced unexpectedly by one of the participants, is an adequate direction where one of the participants only becomes aware of the weapon after it has been used to cause the fatal injury.

3. Whether a judge must warn juries that, before liability for the primary offence can attach to a secondary assailant in circumstances of an unexpected production of a weapon, that secondary assailant must be given a reasonable opportunity of withdrawing before the weapon is used again.

4The problem as we see it in relation to this application is whether it can be said that these are points "involved in the decision" at which this court arrived. We think not, and we say so for the following reasons.

5The directions as a whole, as this court found, presupposed an ongoing attack and knowledge by the secondary assailants of a continuing attack, and the finding of this court, albeit by a majority, was that there was no evidential basis for the problem which is suggested to be the foundation for this limb of appeal. There was no evidential foundation suggesting a single attack by the knife user who then desists and makes off, followed by some separate attack by the secondary assailants. As the majority pointed out, the basis upon which these points were raised did not accord with the evidence, and was not an evidential basis ever suggested by counsel at the trial. Given the basis for, and the essence of, the decision of the majority in this case, we could not say, therefore, that the postulated questions arise.

6We would add that, in any event, point (v) in Uddin seems wholly adequate to cover the points raised in the postulated questions for it presupposes the use of a weapon after the secondary attacker becomes aware of its potential use.

7For these reasons, the application for a certificate is declined.