Case Document

100%Judiciary

CACC000309C/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
	THE HONG KONG SPECIAL ADMINISTRATIVE REGION	Respondent

	AND

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

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Coram: Hon Stuart-Moore VP, Mayo VP and Stock JA in Court

Date of Hearing: 13 December 2001

Date of Decision: 13 December 2001

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DECISION

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Hon Mayo VP (giving the decision of the Court):

1.The Court has been moved to certify five points of law of great and general importance. They are:

"1. Is the common law rule that a person can be convicted of murder on proof that he intended to cause the deceased grievous bodily harm in contravention of Articles 25, 28, 39 and 87 of the Basic Law and Articles 5(1), 5(4), 10 and 11(1) of the Hong Kong Bill of Rights Ordinance, Chapter 383?

2. Is it the common law that before a person can be convicted of murder the prosecution must prove that the person had an intention to kill or contemplated that death would result from his acts?

3. Is the common law that a secondary party to a joint criminal enterprise is liable to be charged with and convicted of murder, committed by a principal party, when the secondary party did not intend to kill or inflict grievous bodily harm but foresaw that the principal party might commit murder as part of the enterprise, in contravention of Articles 25 and 28 of the Basic Law and Articles 5(1), 10, 11(1) and 22 of the Hong Kong Bill of Rights, Chapter 383?

4. Is section 2 of the Offences Against the Person Ordinance, Chapter 212, in so far as it provides for the mandatory sentence of life imprisonment on conviction for 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, Chapter 383?

5. Is section 83G of the Criminal Procedure Ordinance, Chapter 221, which provides that a person convicted of murder may not appeal a sentence fixed by law to the Court of Appeal, in contravention of Article 25 of the Basic Law and Articles 5(1), 5(4) and 11(4) of the Hong Kong Bill of Rights, Chapter 383?"

2.There is a complication in this application.

3.On 4 September 2001 judgment was finally delivered by the Court of Appeal. By a majority the appeal was dismissed. On 26 September the applicants made an application for a certificate to issue that questions of great and general importance arose on the appeal. These questions did not embrace the questions which are now posed. The questions were:

"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."

4.The Court of Appeal declined to grant the certificate sought.

5.It has to be added that when the application was made for the certificate the parties would have known that an application had successfully been made in another case (HKSAR v Lau Cheung & Anor CACC 646/2001) to certify similar questions to the points of law which we are now being requested to certify. It is accordingly the case that there is no good reason why the questions we are now being asked to certify were not included in the questions being considered on 26 September.

6.The first issue we have to address on this motion is whether it is within our jurisdiction to entertain successive applications by the same applicants for a certificate pursuant to section 32 of the Court of Final Appeal Ordinance Cap. 484.

7.This is a matter of statutory interpretation. There is nothing in either section 32 or section 33 or the Court of Final Appeal Rules to indicate that more than one application can be made for a certificate.

8.Mr Blanchflower SC for the respondent has most helpfully drawn our attention to the judgment of Edmund Davies LJ in R v Ashdown [1973] 58 Cr App R 339 where he stated at p. 342 that in the interests of finality only one application for a certificate to obtain leave to appeal to the House of Lords was permissible.

9.Although the situation in Ashdown is not identical to the instant case we can see no valid justification not to follow the principle enunciated.

10.While it is true that the statutory regime in the United Kingdom is not exactly the same as here the overall scheme is designed to achieve a similar objective.

11.In our view we do not have jurisdiction to entertain this application and it is accordingly dismissed.