HKSAR v. Li Yim Sang

CACC 37/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 37 OF 2007

(ON APPEAL FROM HCCC NO. 184 of 2006)

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BETWEEN

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Before:   Hon Stuart-Moore VP, Yuen JA and Wright J

Date of Hearing: 14 January 2009

Date of Judgment: 14 January 2009

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.By a Notice of Motion dated 3 September 2008, Mr Ross on the applicant’s behalf has invited us to certify that a point of law of great and general importance was involved in the judgment of this court on 28 August 2008 when we dismissed the applicant’s application for leave to appeal against his conviction for murder.  The point on which we are asked to certify reads:

“Is it a misdirection for a trial judge to direct a jury that in relation to the general issue of intent and the defence of provocation that the ‘reason for [the] killing’ is irrelevant?”

2.The question, as posed, must be case specific and, as we have indicated between paragraphs 38 to 51, this case did not give rise to circumstances in which a special direction about motive was required.

3.Accordingly, we decline to certify and this application is dismissed.

Ms Laura Ng, SPP, of the Department of Justice, for the Respondent.

Mr Phillip Ross, instructed by Messrs Peter K H Wong & Co., assigned by Director of Legal Aid, for the Applicant.