HKSAR v. Pun Ganga Chandra and Others

CACC000309/1999

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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Coram: Stuart-Moore V-P, Keith JA and Stock JA in Court

Date of Hearing: 18 January 2001

Date of Judgment: 6 April 2001

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J U D G M E N T

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Keith JA (giving the judgment of the Court):

Introduction

1. In the early hours of 8 December 1997, an argument broke out between a group of men outside a bar in Wan Chai. In the course of that argument, a young man was stabbed. He died as a result of his injuries. Three men were eventually charged with his murder. They were tried by Gall J and a jury in the Court of First Instance. They pleaded not guilty. However, after a trial lasting a number of weeks, they were convicted and sentenced to imprisonment for life. They now appeal against their convictions and sentences.

2. In his summing-up to the jury, the judge gave the jury the conventional directions on the mens rea required before a person can be convicted of murder. The correctness of these directions is challenged on this appeal. They are said to be inconsistent with the Basic Law and the Bill of Rights. Since this argument involves questions of law alone, leave to appeal against conviction is unnecessary. But this appeal raises another far-reaching question. That is the compatibility of the mandatory sentence of life imprisonment for murder with the Basic Law and the Bill of Rights. Such a sentence - which has to be imposed regardless of differences in the degree of culpability and mitigating circumstances - is also said to be inconsistent with the Basic Law and the Bill of Rights. All appeals against sentence require the leave of the court (see section 83I(1) of the Criminal Procedure Ordinance (Cap. 221)), even if they raise a question of law alone, and we readily give leave in the present case. We trust that we shall be forgiven for the impersonal way we propose to refer to the Appellants, but for convenience we shall refer to them as A1, A2 and A3 respectively.

The prosecution's case

3. It is unnecessary to go into the facts in any detail, but it is important to put the judge's directions into their proper context. The evidence against the Appellants consisted of (a) various witnesses who saw the Appellants fighting with the deceased and saw a knife used by one of them to stab the deceased, and (b) the answers given by two of the Appellants when they were interviewed by the police. Both in those interviews and in the evidence which all three of them gave at the trial, the Appellants gave their own versions of what had happened and of the respective roles which they had played.

4. It was accepted by the prosecution that not all of the Appellants had stabbed the deceased. Indeed, only one of them could have inflicted the fatal stab wound to the back of the deceased's neck. The prosecution's case was that A1 and A3 had knives, and that one or other of them had inflicted the wound from which the deceased had died. One or other of them was therefore said to have been what we propose to call the primary offender. But if the jury was not sure which of them had inflicted the fatal wound, the prosecution's case was that A1 and A3, as well as A2, should be convicted of murder on the basis that they were all parties to the fatal stabbing of the deceased. Thus, those of the Appellants who the jury was not sure had inflicted the fatal wound were said to have been what we propose to call secondary offenders.

Primary liability

5. The conventional direction. The conventional direction when a defendant charged with murder is alleged to have been a primary offender is that the jury can only convict the defendant of murder if it is sure

(a) that it was the defendant who killed the deceased, and

(b) that at the time the defendant intended either to kill the deceased or to cause him at least really serious bodily injury.

This latter direction has come to be known as the "grievous harm" rule. Under that rule, a person can be convicted of murder even if he did not intend to kill his victim. For a person to be convicted of murder, it is sufficient if he intended to cause his victim grievous bodily harm, i.e. really serious bodily injury.

6. The judge's ruling. At the conclusion of the evidence, counsel for the Appellants applied to the judge for a ruling that the "grievous harm" rule was inconsistent with the rights protected by Art. 28 of the Basic Law and Art. 5(1) of the Bill of Rights. The relevant sentence in Art. 28 of the Basic Law reads:

"No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment."

And Art. 5(1) of the Bill of Rights provides:

"Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."

The "grievous harm" rule was said to infringe these rights for two reasons. First, a person could only be deprived of his liberty as a result of the application of laws which were not arbitrary. Detention and imprisonment as a result of a conviction following a breach of laws which are themselves arbitrary were said to be just as arbitrary. Secondly, imprisonment for life is the mandatory sentence on conviction for murder: see section 2 of the Offences Against the Person Ordinance (Cap. 212). Since the sentence is mandatory whatever the defendant's degree of criminal culpability, the defendant's detention for life following his conviction for murder based on the "grievous harm" rule was said to be arbitrary for that reason as well. Accordingly, the judge was pressed to direct the jury that what had to be proved in relation to any of the Appellants who the jury was sure had inflicted the fatal stab wound was that that Appellant had either intended to kill the deceased or had known that his actions were likely to endanger the deceased's life.

7. That formulation of the only permissible alternative to an intention to kill was considered and rejected by the House of Lords in Hyam v. Director of Public Prosecutions [1975] AC 55 and in R v. Cunningham [1982] AC 566, although there were dissenting speeches in Hyam and other judges (for example, Lord Edmund-Davies in Cunningham) only concurred in the result because they believed that so fundamental a change in the common law - which the adoption of this formulation would produce - could only be effected by legislation. Understandably, Gall J did not address what he thought the common law should be. He confined himself to considering whether the "grievous harm" rule was inconsistent with either the Basic Law or the Bill of Rights. He ruled that it was not. His ruling is reported at [1999] 2 HKLRD 648. He therefore gave the jury the conventional direction in accordance with the "grievous harm" rule.

8. The Coady case. There have been three other cases in Hong Kong in which the "grievous harm" rule has been challenged at first instance: HKSAR v. Chan Chui Mei [1999] 3 HKC 502 (Nguyen J), HKSAR v. Mok Tsan Ping (HCCC 427/98) (Verina Bokhary J) and HKSAR v. Yik Po Man (HCCC 251/99) (Beeson J). In each of these cases, the challenge failed. Eventually, the issue was considered by the Court of Appeal in HKSAR v. Coady (No. 1) [2000] 2 HKLRD 195. Following an examination of the relevant authorities, the Court of Appeal held that the "grievous harm" rule was not inconsistent with Art. 5 of the Bill of Rights nor with any of the other provisions of the Basic Law or the International Covenant on Civil and Political Rights on which reliance had been placed.

9. Mr Desmond Keane SC for the Appellants pointed out that this conclusion in Coady was not binding upon us because the appeal was subsequently allowed on other grounds. However, he realistically accepted that the court might not wish to revisit the issue so soon after Coady. Accordingly, he did not develop any submissions on the basis that Coady was wrongly decided. He simply reserved his right to argue the correctness of Coady elsewhere.

10. In Coady, the court set out what it believed to be the parameters of its inquiry. At pp. 201I-202C, it said:

"... the ['grievous harm'] rule is firmly entrenched in the common law as it applies to Hong Kong. It was confirmed by the House of Lords in R v. Cunningham [1982] AC 566, and has been applied in Hong Kong without question both before and since. It is not appropriate for an intermediate appellate court to embark upon law reform. Its duty is to apply the common law as it is, not to say what it should be. If the common law in this area is to be changed by the courts, that should only be done by the Court of Final Appeal, though we suspect that even the Court of Final Appeal would say that so entrenched a rule of the common law should only be changed by the legislature.

However, that is not to say that the courts have no role to play in this area. If the 'grievous harm' rule is inconsistent with any of the rights protected by the Bill of Rights, it is for the courts to declare that to be the case. However firmly the 'grievous harm' rule may be entrenched in the common law, it must be set aside if it is incompatible with the Bill of Rights. No law is immune from judicial scrutiny for its lack of compatibility with the Bill of Rights, even if that requires the courts to set aside a rule which the common law regards as immutable and sacrosanct."

That had been Gall J's approach, and we have no doubt that it was the correct one.

11. Although we do not think it appropriate to revisit the issue so soon after Coady, it would, we think, be helpful - in view of the other arguments which we must address - to bear in mind how the court in Coady reached its conclusions on the two arguments deployed before Gall J. The court was inclined to the view that Art. 5(1) of the Bill of Rights merely permitted judicial scrutiny of laws relating to arrest and detention, and provided procedural guarantees for the fair and lawful operation of those laws. The court was sceptical as to whether Art. 5(1) permitted the court to scrutinise for arbitrariness other laws, i.e. those which resulted in the arrest and detention of persons who broke them. However, the court did not reach a concluded view on the reach of Art. 5(1) because, even if Art. 5(1) permitted the court to scrutinise for arbitrariness laws which resulted in the arrest and detention of persons who broke them, the "grievous harm" rule was not arbitrary since it could be objectively justified. The court said at pp.207B-208A:

"The nature of that justification has been identified even by the critics of the rule. Lord Edmund Davies in R v. Cunningham [1982] AC 566 made no secret of the direction which he thought the law should take. He said at pp. 582G-583A:

'... after much veering of thought over a period of years, the view I presently favour is that there should be no conviction for murder unless an intent to kill is established, the wide range of punishment for manslaughter being fully adequate to deal with all less heinous forms of homicide. I find it passing strange that a person can be convicted of murder if death results from, say, his intentional breaking of another's arm, an action which, while undoubtedly involving the infliction of 'really serious harm' and, as such, calling for severe punishment, would in most cases be unlikely to kill. And yet, for the lesser offence of attempted murder, nothing less than an intent to kill will suffice.'

But he added at p. 583A (and this is the justification for the 'grievous harm' rule):

'But I recognise the force of the contrary view that the outcome of intentionally inflicting serious harm can be so unpredictable that anyone prepared to act so wickedly has little ground for complaint if, where death results, he is convicted and punished as severely as one who intended to kill.'

And although Lord Steyn strongly disagreed with the 'grievous harm' rule, he too identified the justification for its retention. In R v. Powell [1999] 1 AC 1 at p. 15C, having asked rhetorically what the justification for the rule was, he said that the argument was that:

'... given the unpredictability whether a serious injury will result in death, an offender who intended to cause serious bodily injury cannot complain of a conviction of murder in the event of death.'

It is unnecessary for us to declare where we stand in this debate. It is sufficient for us to state that the justification for the 'grievous harm' rule is such that the rule cannot be described as arbitrary. The rule represents a respectable view as to what the law of murder should embrace, even though views may differ on the topic, and even if it results in a different mens rea being required for a defendant charged with murder, and one charged with attempted murder."

12. As for the argument based on the arbitrary nature of detention for life, the court said at pp. 202H-203A:

"If the mandatory sentence for murder covers persons of differing degrees of culpability, that is a consequence of the law of murder itself embracing both persons who intend to kill and persons who merely intend to cause really serious bodily injury. If including all such persons within the definition of murder does not infringe Art. 5(1), the fact that a sentence of life imprisonment must be imposed irrespective of the category into which the defendant falls will not cause the 'grievous harm' rule to infringe Art. 5(1). It may be argued that a mandatory life sentence infringes Art. 5(1) on the basis that it provides for the same sentence for persons of differing degrees of culpability. But that does not affect the question whether the appellant was rightly convicted of murder. It goes to the question whether the mandatory sentence imposed on her conviction for murder, irrespective of her culpability, infringes Art. 5(1). It goes, in other words, to an appeal against her sentence rather than to her appeal against her conviction."

13. Equality before the law. Finally, in his skeleton argument, Mr Keane argued that the "grievous harm" rule infringes Art. 25 of the Basic Law, which provides:

"All Hong Kong residents shall be equal before the law."

Residents of Hong Kong are said not to be equal before the law if persons with different intentions, i.e. those who intend to kill and those who intend merely to cause really serious bodily injury can be convicted of the same crime. A not dissimilar argument was deployed in Coady, though in the context of Art. 10 of the Bill of Rights, the first sentence of which provides:

"All persons shall be equal before the courts and tribunals."

In Coady, the argument was rejected, inter alia, on the basis that Art. 10 does not relate to the substance of the criminal law. It relates to the criminal process. It provides guarantees for a fair trial and requires all persons involved in the criminal process to be treated in terms of procedure on terms of equality.

14. In our opinion, Art. 25 of the Basic Law focuses on something different. It is directed towards discriminatory treatment under the law. Its counterpart in the Bill of Rights is not Art. 10, but Art. 22 which provides:

"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

Since the "grievous harm" rule applies to all Hong Kong residents charged with murder, no question of the "grievous harm" rule infringing Art. 25 of the Basic Law can arise.

15. Conclusion. For these reasons, we are not prepared to depart from what was decided in Coady. It follows that the "grievous harm" rule, in its application to a person charged with murder who is alleged to be a primary offender, is neither inconsistent nor incompatible with the rights protected by the Basic Law and the Bill of Rights.

Secondary liability

16. The prosecution's case. A2 was not alleged by the prosecution to have had a knife. Since he could not have inflicted the fatal stab wound to the deceased, he could not have been a primary offender. His conviction for murder could only be sustained on the basis of secondary liability for the murder of the deceased. The same is true of both A1 and A3 if the jury was not sure which of them had inflicted the fatal stab wound to the deceased.

17. The prosecution's case on secondary liability was based on the doctrine of joint enterprise. This was entirely in accordance with the principle which governs liability of secondary offenders. As Lord Mustill said in Powell at p. 10F:

"Throughout the modern history of the law on secondary criminal liability ... the responsibility of the secondary defendant has been founded on his participation in a joint enterprise of which the commission of the crime by the principal offender formed part."

But the liability of a secondary offender for the crimes of the primary offender is not limited to crimes to which the joint enterprise related. The liability of the secondary offender for the crimes of the primary offender can include other crimes as well. A secondary offender can be liable for a crime committed by the primary offender even though the joint enterprise did not relate to such a crime, provided that the secondary offender realised that there was a real risk that, in carrying out the joint enterprise to commit the crime to which the joint enterprise related, the primary offender might commit that other crime. As was said by Sir Robin Cooke (as he then was) in Chan Wing Siu v. R [1985] 1 AC 168 (an appeal to the Privy Council from Hong Kong) at p. 175H:

"The criminal culpability lies in participating in the venture with that foresight."

The principle was pithily expressed by Lord Hutton in Powell at p. 21E-F:

"... participation in a joint criminal enterprise with foresight or contemplation of an act as a possible incident of that enterprise is sufficient to impose criminal liability for that act carried out by another participant in the enterprise."

18. Nevertheless, the authorities show that the circumstances in which a secondary offender can be liable for a murder committed by the primary offender in the course of a joint enterprise in which the death of the deceased or really serious bodily injury to him was not the intention or aim of the joint enterprise are very limited. In particular, three matters have to be established before the secondary offender can be liable for a murder committed by the primary offender:

(i) The primary offender must himself have been guilty of murder. He must therefore have intended either to kill the deceased or to cause him really serious bodily injury.

(ii) Actual foresight on the part of the secondary offender is required. It is not enough for the prosecution to prove that the secondary offender ought to have realised what the primary offender might do. The prosecution has to prove that the secondary offender actually realised what the primary offender might do, and continued to participate in the joint enterprise with that foresight.

(iii) What the primary offender might do has to have been foreseen by the secondary offender as a real possibility. Thus, the secondary offender has to have realised that there was a real risk that the primary offender might attack the deceased with the intention of either killing him or causing him really serious bodily injury.

19. In the present case, the prosecution's case was that the three Appellants had been parties to a joint enterprise to attack the deceased. In the course of carrying out that joint enterprise, one of the Appellants had inflicted the fatal wound from which the deceased had died. If, in carrying out the attack, the Appellant who had inflicted the fatal stab wound had intended either to kill the deceased or to cause him really serious bodily injury, that Appellant would be guilty of murder as the primary offender. But the other Appellants would also be liable for his murder as secondary offenders if they had realised that there was a real risk that one of them, in the course of carrying out the attack to which the joint enterprise related, might attack the deceased with the intention of either killing him or causing him really serious bodily injury, and had continued to participate in the joint venture with that realisation.

20. The judge's directions. Gall J purported to direct the jury in accordance with these principles. Having given the jury the conventional direction based on the "grievous harm" rule, i.e. the direction which applied to any of the Appellants who the jury was sure had inflicted the fatal stab wound, Gall J turned to joint enterprise. He said:

"The next matter I must tell you about is joint enterprise, because there is another way you can be guilty of murder. Where two or more persons embark upon a joint enterprise, that is, something which has a common purpose, each of them is liable for the acts done in that joint enterprise. Even if unusual consequences arise from the carrying out of that joint enterprise, each is liable for those consequences."

After giving an illustration of how the principle worked in practice to render a secondary offender liable for the crimes of the primary offender, Gall J went on to explain what the position would be if the primary offender went outside the plan to which the joint enterprise related. He said:

"However, if one of them departs completely from what has been expressly or agreed by implication as part of the joint enterprise, he alone is liable for the consequences of his unauthorised act, because it is not done in pursuance of the joint enterprise."

After giving an illustration of how that would prevent a secondary offender from being liable for the crimes of the primary offender, Gall J summarised what the prosecution had to prove against each Appellant if they were to be convicted of murder on the basis of secondary liability. He said:

"Therefore, before you can convict an accused on the basis of joint enterprise, the following must be proved. Firstly, that there was an unlawful joint enterprise, joint agreement, to attack the deceased in this case, of which the accused was a party - any accused. Secondly, that the act of stabbing with a knife was within the scope, was within the agreement that had been made. Thirdly, that the accused must have agreed to the person who did the stabbing acting as he did, and must have foreseen that person's act as a possible incident of the execution of that joint enterprise and, nonetheless, lent himself to it.

That, in rather more complicated words, is what I have just been saying. In this case, if an accused knew that another accused had a knife, that he took it with him intending to use it, if necessary, and knowing that if it were used, it would be used to commit really serious harm, and it was used, and the deceased died, then that accused as part of that joint enterprise, is guilty of murder."

This direction was based on the assumption that the jury was sure that the Appellant whose case the jury was considering knew that another Appellant had a knife. Gall J then went on to deal with the position if the jury was not sure of that. He said:

"There is a secondary scenario that you also must consider. If an accused does not know that another accused is carrying a knife, but in the course of the attack upon the deceased he saw another accused use a knife - in other words, he came to the knowledge that in their joint attack upon the deceased, a knife was being used, and he still continues in the attack - that at that point he is party to a joint enterprise knowing that a knife was being used, and still making himself part of that joint enterprise, and if death results, then he is guilty of murder."

21. The "secondary offender" rule. It is not suggested that Gall J's directions did not constitute proper directions to the jury on the liability for the murder of the deceased at common law of those of the Appellants who had not inflicted the fatal stab wound. We shall return to that concession later. What is said, however, is that the common law relating to the liability of secondary offenders for murder is inconsistent with the rights protected by Art. 5(1) of the Bill of Rights and Art. 28 of the Basic Law. That issue was expressly left open in Coady: see p. 213F. For convenience, we shall refer to the common law relating to the liability of secondary offenders for murder as the "secondary offender" rule.

22. The "secondary offender" rule is said to infringe

(a) the right which everyone in Hong Kong enjoys under Art. 5(1) of the Bill of Rights not to be subject to arbitrary detention, and

(b) the right which Hong Kong residents enjoy under Art. 28 of the Basic Law not to be subject to arbitrary detention or imprisonment.

The grounds are the same as the grounds for attacking the "grievous harm" rule, namely that the "secondary offender" rule itself is arbitrary as is mandatory punishment of imprisonment for life for a secondary offender whatever the degree of his criminal culpability. For the reasons given in Coady, the latter argument goes to the appeal against sentence, and we shall return to it later. As for the argument that the "secondary offender" rule itself is arbitrary, we remain sceptical as to whether Art. 5(1) of the Bill of Rights and Art. 28 of the Basic Law permit the court to scrutinise for arbitrariness laws which result in the detention or imprisonment of persons who break them, but as in Coady we propose to address the issue on its merits.

23. The "secondary offender" rule contains elements of the "grievous harm" rule: the foresight required of the secondary offender is foresight that the primary offender might have attacked the deceased with the intention of either killing him or causing him really serious bodily injury. It was submitted to Gall J that the "secondary offender" rule is arbitrary because it reproduces the arbitrariness of the "grievous harm" rule. Gall J rejected that argument, and we reject it as well, standing as we do by what was said in Coady. It is to another criticism of the "secondary offender" rule that we now turn. That criticism was summarised by Lord Steyn in Powell at p. 14C-D as follows:

"... the ... argument [is] that it is anomalous that a lesser form of culpability is required in the case of a secondary party, viz. foresight of the possible commission of the greater offence, whereas in the case of the primary offender the law insists on proof of the specific intention which is an ingredient of the offence. This general argument leads ... to the particular argument that it is anomalous that the secondary party can be guilty of murder if he foresees the possibility of such a crime being committed while the primary can only be guilty if he has an intent to kill or cause really serious injury. Recklessness may suffice in the case of the secondary party but it does not in the case of the primary offender."

Lord Steyn then proceeded to address this supposed anomaly at p. 14E-G:

"If the law required proof of the specific intention on the part of the secondary party, the utility of the accessory principle would be gravely undermined. It is just that a secondary party who foresees that the primary offender might kill with the intent sufficient for murder, and assists and encourages the primary offender in the criminal enterprise on this basis, should be guilty of murder. He ought to be criminally liable for harm which he foresaw and which in fact resulted from the crime he assisted and encouraged. But it would in practice almost invariably be impossible for a jury to say that the secondary party wanted death to be caused or that he regarded it as virtually certain. In the real world proof of an intention sufficient for murder would be well nigh impossible in the vast majority of joint enterprise cases. Moreover, ... [t]he criminal justice system exists to control crime. A prime function of that system must be to deal justly but effectively with those who join with others in criminal enterprises. Experience has shown that joint criminal enterprises only too readily escalate into the commission of greater offences. In order to deal with this important social problem the accessory principle is needed and cannot be abolished or relaxed."

24. Lord Hutton took a similar view in Powell. He recognised at p. 25F-G that "on one view it is anomalous that if foreseeability of death or really serious harm is not sufficient to constitute mens rea for murder in the party who actually carries out the killing, it is sufficient to constitute mens rea in a secondary party". He then went on to identify at pp. 25G-26D "the practical considerations of weight and importance related to considerations of public policy which justify" the secondary offender rule. They included the following:

(i) "If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture. As Professor Smith points out, B has in those circumstances lent himself to the enterprise and by so doing he has given assistance and encouragement to A in carrying out an enterprise which B realises may involve murder" (per Lord Lane CJ in R v. Hyde [1991] 1 QB 134 at p. 139C-D).

(ii) "A further consideration is that, unlike the principal party who carries out the killing with a deadly weapon, the secondary party will not be placed in the situation in which he suddenly has to decide whether to shoot or stab the third person with intent to kill or cause really serious harm. There is, in my opinion, an argument of considerable force that the secondary party who takes part in a criminal enterprise (for example, the robbery of a bank) with foresight that a deadly weapon may be used, should not escape liability for murder because he, unlike the principal party, is not suddenly confronted by the security officer so that he has to decide whether to use the gun or knife or have the enterprise thwarted and face arrest" (p. 26B-D).

(iii) "What public policy requires was rightly identified in the submissions for the Crown. Where a man lends himself to a criminal enterprise knowing that potentially murderous weapons are to be carried, and in the event they are in fact used by his partner with an intent sufficient for murder, he should not escape the consequences by reliance upon a nuance of prior assessment, only too likely to have been optimistic" (per Sir Robin Cooke in Chan Wing Siu at p. 177D-E).

25. Conclusion. These considerations convince us that the "secondary offender" rule cannot be said to be arbitrary - whether the term "arbitrary" means something which cannot be objectively justified or whether it has some other meaning. As was said in Coady when addressing the supposed arbitrariness of the "grievous harm" rule, it is unnecessary for us to declare where we stand in the debate. It is sufficient for us to state that the "secondary offender" rule represents a respectable view as to what the law of murder should embrace, even though views may differ on the topic, and even if it results in a different mens rea being required for primary and secondary offenders. For these reasons, we have concluded that the "secondary offender" rule does not infringe Art. 5(1) of the Bill of Rights or Art. 28 of the Basic Law.

The mandatory sentence of imprisonment for life

26. The history of the punishment for murder. Until 1993, murder was a capital offence in Hong Kong: the death penalty was the only punishment for murder recognised by law. However, under the Letters Patent, the Governor had the power to remit a sentence passed on an offender. Thus, he had the power to commute sentences of death to imprisonment for life or to imprisonment for a fixed term. The last execution took place in 1966. Since then the Governor always (save for one occasion in 1973) commuted sentences of death to ones of imprisonment. On the one occasion when he did not, the prisoner petitioned the Queen, and on the advice of the Secretary of State for Foreign Affairs the sentence was commuted to one of life imprisonment.

27. In 1991, the Legislative Council voted in favour of introducing legislative measures which would abolish the death penalty for all crimes for which the death penalty was the only sentence (i.e. treason and piracy with violence as well as murder) and would replace the death penalty with a mandatory sentence of life imprisonment, leaving it to the Governor to decide, pursuant to his powers under the Letters Patent, to determine when the prisoner should be released. The issue was further debated, on the resumed second reading of the Bill which would effect these changes, and a spectrum of different views was expressed. In addition, the views of interested bodies were relayed to members. Both the Hong Kong Bar Association and the Law Society of Hong Kong considered that the death penalty should be abolished. In relation to the offence of murder, they differed only as to whether life imprisonment should be the only sentence or the maximum sentence, the Bar Association favouring the former and the Law Society favouring the latter. The Hong Kong Citizens' Alliance, on the other hand, opposed the abolition of capital punishment.

28. In due course, the proposal to make life imprisonment the mandatory sentence for murder was passed, and section 2 of the Offences Against the Person Ordinance was amended to reflect that. One of the considerations which plainly influenced members was the existence of the Board of Review of Long-Term Prison Sentences. Its function was to review the sentences of long-term prisoners (including offenders serving commuted life or fixed terms of imprisonment for murder) and to tender advice to the Governor as to when they should be released. Since 1997, the Board of Review's functions have been governed by statute - the Long-Term Prison Sentences Review Ordinance (Cap. 524). Thus, in making its recommendations to the Chief Executive in Council as to when persons serving life imprisonment for murder should be released, the Board of Review is required, by section 8(c), to have regard to:

"whether the part of the prisoner's sentence already served is sufficient, in all the circumstances (in particular given the nature of the offence for which the prisoner is being detained), to warrant consideration being given to having the prisoner released from detention early ..."

29. The Appellants' argument. The mandatory sentence of life imprisonment for murder is said to infringe the rights protected by Art. 5(1) of the Bill of Rights and Art. 28 of the Basic Law on the ground that the detention and imprisonment which it mandates for all persons convicted of murder is arbitrary. That is because it prevents the judge who has to sentence a person convicted of murder from passing what in his view the appropriate sentence for the crime is. He is disabled from reflecting in his sentence the true nature of the offender's crime, the degree of the offender's culpability and any mitigating or aggravating circumstances. That is particularly pernicious, so it is said, in a system in which the definition of murder is wide enough to bring within its ambit offenders at different extremes of the moral spectrum. As was said in Coady at pp. 208J-209A to illustrate the wide range of persons whose acts of homicide come within the "grievous harm" rule:

"Contrast the case of the bank robber who cynically shoots a bank teller in cold blood and the son who humanely puts his dying mother out of her misery by giving her a lethal injection."

30. The view of the legislature. It is important not to lose sight of the fact that it was the legislature which decided that life sentences for murder should be mandatory and that the legislature came to that view following a full debate on the topic at which the arguments in favour of and in opposition to a mandatory as opposed to a maximum sentence were fully canvassed. The decision to abolish the death penalty but to make imprisonment for life the mandatory sentence for murder thus represented the legislature's view as to where the balance should be struck between the rights of the individual and the need to protect society as a whole. As Lord Woolf said in Attorney-General of Hong Kong v. Lee Kwong Kut [1993] 2 HKCLR 186 at p. 202:

"In order to maintain the balance between the individual and the society as a whole, rigid and inflexible standards should not be imposed on the legislature's attempts to resolve the difficult and intransigent problems with which society is faced when seeking to deal with serious crime. It must be remembered that questions of policy remain primarily the responsibility of the legislature."

31. The view that the courts should give due weight to the views of the legislature on issues of policy when considering international human rights instruments has recently been established in European jurisprudence. In R v. Director of Public Prosecutions ex p. Kebilene [2000] 2 AC 326, Lord Hope of Craighead referred at p. 380E to the acknowledgment by the European Court of Human Rights

"... that, by reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed to evaluate local needs and conditions than an international court."

But as Lord Steyn pointed out in Procurator Fiscal, Dunfermline v. Brown (Privy Council appeal, no. DRA 3/2000) at p. 40:

"That principle is logically not applicable to domestic courts. On the other hand, national courts may accord to the decisions of national legislatures some deference where the context justifies it ...."

Lord Steyn went on to observe that this point was well explained in Lester and Pannick, "Human Rights Law and Practice", 1999, p. 74:

"Just as there are circumstances in which an international court will recognise that national institutions are better placed to assess the needs of society, and to make difficult choices between competing considerations, so national courts will accept that there are some circumstances in which the legislature and the executive are better placed to perform those functions."

Lord Bingham of Cornhill made the same point at p. 28:

"Judicial recognition and assertion of the human rights defined in the [European] Convention is not a substitute for the processes of democratic government but a complement to them. While a national court does not accord the margin of appreciation recognised by the European Court as a supra-national court, it will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies ...."

32. The need for domestic courts to give weight to the views of the legislature on matters of policy received its most articulate expression in Lord Hope's speech in Kebilene. At pp. 380G-381B, he said:

"[The] doctrine [of the margin of appreciation] is an integral part of the supervisory jurisdiction which is exercised over state conduct by the international court. By conceding a margin of appreciation to each national system, the court has recognised that the Convention, as a living system, does not need to be applied uniformly by all states but may vary in its application according to local needs and conditions. This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of the national courts also the Convention should be seen as an expression of fundamental principles rather than as a set of mere rules. The questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality.

In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention."

The court was concerned, of course, with the European Convention for the Protection of Human Rights and Fundamental Freedoms as incorporated into English domestic law by the Human Rights Act 1998. We take this opportunity to declare that, in our view, similar considerations apply to the International Covenant on Civil and Political Rights as applied to Hong Kong by the Bill of Rights.

33. In the course of the debate on the resumed second reading of the Bill which would abolish capital punishment, Mr Simon Ip said:

"... I doubt whether a mandatory life sentence is indeed the appropriate punishment for murder, for it runs against two cherished principles of our criminal justice system.

Foremost, to impose the identical penalty upon all persons convicted of an offence - irrespective of their different circumstances, motives and intention - can create injustice. Mercy-killings do not carry the same culpability as callous robbers killing an innocent pedestrian on a crowed street. To put these two situations on the same par deprives the vital discretion available to a judge to hand down a sentence that fits the crime.

Secondly, a mandatory life sentence imposed by a judge coupled with a review and remission of the sentence carried out by the executive will blur the separation of powers between the judiciary and the executive.

If we rely on remission to mitigate the harshness of a mandatory life sentence, we are in effect asking the executive to perform a function which properly falls within the jurisdiction of the courts. Judges in murder cases will have little say in how long the prison term should be, other than submitting a report on the case together with their recommendation on the minimum period of imprisonment which will form part of the consideration of the Board of Review. It will primarily be the executive, through the Board of Review and the Governor in Council, who will exercise the function of sentencing by determining when convicted prisoners should be released.

Because these two important principles are at stake, it seems to me that a better alternative is simply to have a discretionary life sentence. The Law Society is of a similar opinion." (Hong Kong Legislative Council, Reports of Debates, 21 April 1993, p. 2938).

Despite these powerful arguments, the Legislative Council decided that life imprisonment should be the mandatory sentence for murder. For the reasons we have given, we believe that we should give due weight to the concluded view of the majority of the members of the Legislative Council who came to that conclusion.

34. The punitive nature of the mandatory sentence of life imprisonment for murder. The mandatory sentence of life imprisonment for murder serves a different purpose from a discretionary sentence of life imprisonment, in which life imprisonment is the maximum, rather than the only, sentence for a particular offence. A discretionary sentence of life imprisonment was described by the European Court of Human Rights in Wynne v. United Kingdom (1994) 19 EHRR 333 at para. 33 as having a "protective" purpose. It is intended to take into account "the presence of factors which are susceptible to change with the passage of time, namely mental instability and dangerousness". The mandatory sentence, on the other hand, was described in Wynne as "essentially punitive in nature", and is imposed because of the inherent gravity of the offence. It reflects society's denunciation of the crime of murder and the belief that murder is an offence of such gravity that the offender "forfeits his liberty to the state for the rest of his days" (Hansard, House of Commons Debates, 16 July 1991, col. 309)

35. In Wynne, the court was concerned with the provision in the European Convention equivalent to the procedural guarantees given by Art. 5(4) of the Bill of Rights. The question whether the mandatory sentence of life imprisonment constituted arbitrary detention in the context of the equivalent to Art. 5(1) of the Bill of Rights was not addressed. But that question was considered by the Supreme Court of Canada in R v. Luxton (1990) 58 CCC (3d) 449. In that case, the court had to decide whether the provisions of the Criminal Code which provided for the mandatory imposition of life imprisonment without eligibility for parole for 25 years for a person convicted of first-degree murder conflicted with various rights guaranteed by the Charter of Rights and Freedoms: section 7 (fundamental justice), section 9 (arbitrary detention or imprisonment) and section 12 (cruel and unusual punishment). The court found that none of these rights had been infringed.

36. In considering whether a mandatory sentence of life imprisonment offended principles of fundamental justice, the court accepted that there were some crimes for which a punitive sentence may be appropriate. Thus, at p. 457c-d, Lamer CJC acknowledged "that a sentencing scheme must exhibit a proportionality to the seriousness of the offence, or to put it another way, there must be a gradation of punishments according to the malignity of the offences." However, he also recognised at p. 457d that "a sentencing scheme also must take into account other factors that are of significance for the societal interest in punishing wrongdoers." He then went on to cite with approval what La Forest J had said in R v. Lyons (1987) 37 CCC (3d) 1 at p. 22:

"... it cannot be considered a violation of fundamental justice for Parliament to identify those offenders who, in the interests of protecting the public, ought to be sentenced according to considerations which are not entirely reactive or based on a 'just deserts' rationale. The imposition of [such] a sentence ... seems to me to accord with the fundamental purpose of the criminal law generally, and of sentencing in particular, namely, the protection of society. In a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender."

We agree with these statements of principle which recognise that there may be some crimes for which it is open to the legislature to conclude that sentences with a predominantly punitive element are appropriate.

37. The supposed arbitrariness of the mandatory sentence. Lamer CJC then addressed the argument that the mandatory sentence of life imprisonment for first-degree murder constituted arbitrary detention or imprisonment. He said that the Appellant's argument was that it was arbitrary to impose "a mandatory term of imprisonment by statute for an offence that encompasses a range of moral turpitude" (p. 458d-e). That is the Appellants' argument in the present case. Lamer CJC concluded at p. 459c that the mandatory term of imprisonment for life without eligibility for parole for 25 years did not amount to arbitrary detention or imprisonment because "[t]he incarceration is statutorily authorized, it narrowly defines a class of offenders with respect to whom the punishment will be invoked and it prescribes quite specifically the conditions under which an offender may be found guilty of first degree murder." We agree with the Supreme Court of Canada that if a mandatory sentence of life imprisonment satisfies these criteria, it cannot be said to amount to arbitrary detention or imprisonment.

38. The law of murder in Hong Kong does not distinguish between first-degree murder, second-degree murder and so forth. What our law does is to distinguish between certain forms of homicide, categorising some as murder and others as manslaughter. We have already referred to the fact that mandatory sentences of life imprisonment have been authorised by statute, and we believe that the class of offenders who come within the category of murder is both sufficiently clearly and narrowly defined to satisfy the criteria referred to in Luxton. That applies to both primary and secondary offenders. The "grievous harm" rule catches only those primary offenders who intend to cause their victims really serious bodily injury at the very least, and there is much to be said for the view (adopting the language of Lord Edmund-Davies in Cunningham at p. 583A) that the outcome of intentionally inflicting really serious bodily injury can be so unpredictable that anyone prepared to act in so shocking a manner has little ground for complaining if, where death results, he forfeits his liberty for the rest of his life.

39. As for secondary offenders, the "secondary offender" rule catches only those secondary offenders who participate in a joint enterprise to cause really serious bodily injury to the deceased, or (in the case of a joint enterprise in which the death of the deceased or really serious bodily injury to him was not its aim) the "secondary offender" rule catches only those secondary offenders who participate in the joint enterprise realising that there was a real risk that the primary offender would attack the deceased with the intention of either killing him or causing him really serious bodily injury. That brings within a very clear and narrow band those secondary offenders who can be convicted of murder. Again, there is much to be said for the view (adopting the language of Lord Steyn in Powell at p. 14E) that it is just that a secondary offender who realises that there is a real chance that the primary offender might kill with the intention sufficient for murder, but nevertheless assists or encourages the primary offender in the criminal enterprise with that foresight, should forfeit his liberty for the rest of his life.

40. Finally, we bear in mind that, with the placing of the Board of Review on a statutory footing, the Legislative Council has ensured that there is machinery in place for an independent review of the actual length of an offender's detention. To adopt the language of Lamer CJC in Luxton at p. 457a-b:

"This indicates that even in the cases of our most serious offenders, [the legislature] has provided for some sensitivity to the individual circumstances of each case when it comes to sentencing."

For all these reasons, therefore, we are unable to say that the mandatory sentence of life imprisonment for murder amounts to arbitrary detention or imprisonment contrary to Art. 5(1) of the Bill of Rights and Art. 28 of the Basic Law.

41. Equality before the law. The mandatory sentence of life imprisonment for murder is also said to infringe the right of equality before the law protected by Art. 25 of the Basic Law. Residents of Hong Kong are said not to be equal before the law if persons of different degrees of culpability have to be sentenced in the same way. We reject this argument for the same reason as we rejected the reliance placed on Art. 25 to attack the "grievous harm" rule. Given the fact that all residents of Hong Kong have to be sentenced to life imprisonment if they are convicted of murder, no question of the mandatory sentence of life imprisonment for murder infringing Art. 25 of the Basic Law arises.

Conclusion

42. We have in this judgment dealt with the wider issues which this appeal has raised. To that extent, those issues have been disposed of. However, earlier in this judgment we said that we would be returning to the concession that Gall J's directions constituted proper directions to the jury on the liability for the murder of the deceased at common law of those of the Appellants who had not inflicted the fatal stab wound. At least one member of the court has some reservations about the particular terms of those directions, and we wish to hear further argument on the topic before finally disposing of the appeal. We are notifying the Director of Legal Aid and the Department of Justice of those reservations. Accordingly, the course which we propose to take for the time being is simply to direct that this appeal be re-listed for hearing on a date to be fixed after consultation with counsel's diaries for the parties to make such representations to us as they wish on the areas on which they will have been notified.

Representation:

Mr Desmond Keane SC and Mr William Wong, instructed by the Director of Legal Aid, for the Appellants

Mr Michael Blanchflower, Mr Gavin Shiu and Miss Diana Lam, of the Department of Justice, for the Respondent