Sze Kwan Lung & Others v. HKSAR

FAMC000001/2004

FAMC Nos 1 and 2 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1 and 2 OF 2004 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 92 OF 2002)

_____________________

_____________________

Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 5 March 2004

Date of Determination: 5 March 2004

_____________________

D E T E R M I N A T I O N

_____________________

Mr Justice Bokhary PJ:

1.We will deal with sentence first. Sometimes a defendant who faces a murder charge offers to plead guilty to manslaughter. If his offer is rejected by the prosecution, he has a choice. He can fight the case on the basis that he is not guilty of murder but guilty of manslaughter. Or he can fight the case on the basis that he is not guilty of any homicide. There is a considerable difference between these two courses. If the defendant is convicted of manslaughter after pursuing the first course, the full one-third discount of sentence for a guilty plea is normally given. But if he is convicted of manslaughter after pursuing the second course, something less than a one-third discount is normal. Is it reasonably arguable that there is a departure from accepted norms in the extent to which the discounts given by Gall J fall short of one-third? In all the circumstances, we think that that is not reasonably arguable. Accordingly we refuse leave to appeal to the Court of Final Appeal against sentence.

2.As to conviction, it is reasonably arguable that the dissenting view of Stock JA rather than the majority view represents accepted norms. Accordingly we grant each applicant leave to appeal to the Court of Final Appeal against conviction on the substantial and grave injustice ground. No question of law has been formulated for certification. But it might be that there is a question or are questions as to the law of joint enterprise or secondary criminal liability for resolution in the appeal to the Court of Final Appeal. If any counsel detects any such question or questions, he should deal with the same fully in his printed case. And the relevant authorities and academic writings should be drawn to the Court of Final Appeal's attention.

Representation:

Mr Gerard McCoy SC (instructed by Messrs Knight & Ho and assigned by the Legal Aid Department) for the 1st applicant

Mr Lawrence Lok SC and Mr Edwin Choy (instructed by Messrs S.Y. Chu & Co. and assigned by the Legal Aid Department) for the 2nd to the 7th applicants

Mr Alain Sham and Ms Anthea Pang (of the Department of Justice) for the respondent