Lee Kwan Kong and Another v. HKSAR

FAMC Nos. 7 & 8 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NOs. 7 & 8 OF 2006 (Criminal)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC No. 198 of 2004)

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Appeal Committee:  Chief Justice Li, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing:  26 April 2006

Date of Determination: 26 April 2006

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

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Mr Justice Ribeiro PJ:

1.The applicants were convicted by the jury of the murder of Yung Cho-hing.  The evidence was that the deceased had suffered severe multiple injuries, both external and internal, after being subjected by the applicants and one other person to a series of prolonged and savage beatings during the period from about 11 pm on 30 March 2003 to about 11.30 pm on the next day, when he died.

2.The applicants did not give or call any evidence.  They had, however, made various admissions in video-recorded cautioned statements.  They admitted killing the deceased but denied liability for murder, offering to plead to manslaughter, which the prosecution rejected.  Their case was that they lacked the necessary intent.  The Judge, V Bokhary J, directed the jury that there was no evidence that they intended to kill the deceased but left it to them to decide whether, in administering the beatings, the applicants had intended to cause the deceased really serious injury.  She also directed the jury that if they were not sure that there was such intention, they should return a verdict of guilty of manslaughter, as the applicants were inviting them to do.  The jury convicted of murder.

3.Mr John Haynes appears for the 1^st applicant and Mr Maurice Peter Tracy for the 2^nd applicant.  They both seek leave to appeal on the basis that the following point of law of great and general importance is involved, namely:

“Whether a direction along the lines recommended in R v Nedrick (1986) 83 Cr App R 267 and considered in R v Woollin [1999] 1 AC 82 should be given in all murder cases where the defendant may not have desired the result of his acts and it is common ground that there was never any intent to kill?”

4.R v Nedrick was a case where the defendant set fire to paraffin which he had poured through the letter box of a woman’s house, having earlier threatened to “burn her out”.  A child in the house died in consequence.  The English Court of Appeal recognised that in the great majority of cases, “particularly where the defendant’s actions amounted to a direct attack upon his victims”, the simple direction asking the jury to decide whether on the evidence the defendant intended to kill or do serious bodily harm is sufficient.  However, the court acknowledged that in some cases (including Nedrick’s case) the facts may involve the defendant doing “an act which is manifestly dangerous” which causes someone’s death but where “the primary desire or motive of the defendant may not have been to harm that person, or indeed anyone” (at p 270).  In such a case, it may be appropriate to direct the jury along lines aimed at ascertaining whether the defendant foresaw the consequences of his act as a virtual certainty, enabling the jury to infer the necessary intent on his part, even though he may not have desired to bring about those consequences.  See also Lord Steyn in Woollin [1999] 1 AC 82 at 95.

5.It was argued in the Court of Appeal that it was a misdirection not to give a Nedrick direction in the present case.  Stuart-Moore VP, giving the judgment of the court, rejected that argument on grounds (set out in §§47 and 48 of the judgment) which we respectfully find wholly convincing.  This is plainly not a case where any Nedrick direction was called for.  Nor is this case like Woollin where the defendant acted in a momentary loss of temper.  The present applicants clearly desired to cause injury to the deceased when they beat him up.  The Judge ruled out an intention to kill.  But the question very much for the jury was whether they intended to cause him really serious injury.  That required the straightforward direction given by the Judge.  Given the evidence of sustained, concerted and brutal attacks spanning many hours, with the applicants using not only their fists and feet but also an iron pipe and a broomstick or mop handle, resulting in extremely serious and ultimately fatal injuries to the deceased, it is not at all surprising that the jury returned their verdict of guilty.  The question formulated does not arise for decision on the present facts.  Nor is there any question of there being a substantial and great injustice involving a failure to give a direction similar to a Nedrick direction.

6.It is also contended that the balance of the Judge’s direction was unfairly tilted against the applicants so as to justify grant of leave to appeal on the substantial and grave injustice ground.  This merely involves repetition of grounds which were comprehensively shown to be without substance in the judgment of the Court of Appeal.

7.These applications are therefore dismissed.

Mr John Haynes (instructed by Messrs J Chan, Yip, So & Partners and assigned by the Legal Aid Department) for the 1^st applicant

Mr Maurice Peter Tracy (instructed by Messrs Tung, Ng, Tse & Heung and assigned by the Legal Aid Department) for the 2^nd applicant

Mr John Reading SC and Ms Anthea Pang (of the Department of Justice) for the respondent