HKSAR v. Kwan Chi Wing

CACC201/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 201 OF 2008

(ON APPEAL FROM HCCC 1 OF 2008)

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Before : Hon Stuart-Moore Ag. CJHC, Beeson and McMahon JJ

Date of Hearing : 26 June 2009

Date of Judgment : 26 June 2009

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J U D G M E N T

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McMahon J (giving the judgment of the Court) :

1.This is an application for a certificate pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap.484, that a point of law of great and general importance was involved in the judgment of this court which was handed down on 5 June 2009.

2.The proposed question of law, amended from that in the Notice of Motion dated 8 June 2009, is as follows :

“Does a person charged with rape act recklessly, as that term is defined in HKSAR v Sin Kam Wah [2005] 8 HKCFAR, in having sexual intercourse with the complainant if he does not know and does not care whether she is consenting, but carries on regardless. In other words that his state of mind was that he could not have cared less.”

3.We consider that question to raise a point of law of sufficient import to satisfy the requirements of section 32(2).  We allow the application and certify the question.

Mr Robert S.K. Lee, SC, SADPP of the Department of Justice, for the Respondent

Mr David Boyton, instructed by Messrs Littlewoods, for the Applicant