HKSAR v. Ma Kwok Fai

CAC C 404/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 404 OF 2011

(ON APPEAL FROM HCCC NO. 40 OF 2011)

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BETWEEN

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.On 15 June 2012, this Court granted leave to the defendant (Ma Kwok Fai) to appeal against his murder conviction and we allowed his appeal. We quashed his murder conviction and in substitution, we convicted him of manslaughter and sentenced him, on 16 July 2012, to be detained in the Siu Lam Psychiatric Centre for an unspecified period.

2.The reasons for our judgment was handed down on 24 July 2012 and in it we had set out in details the background of the case and the issues as well as how those issues were resolved.

3.The prosecution, in an Amended Notice of Motion dated 3 September 2012, asks this Court to certify as a point of law of great and general importance under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, the following question, which is not easy to apprehend, namely:

“In cases of violence where multiple blows were delivered to the victim, and/or where matter indicative of the Defendant’s intent could lie in circumstances outside a single or more than one blow, if one or some of such blows caused the injury which led to the prohibited outcome (namely, death in the present case) whether the jury should be directed that they should infer the necessary intent (namely, intention to kill or cause grievous bodily harm in the present case) solely from that blow or those blows or from all the circumstances including all the blows struck?”

4.Mr Paul Loughran, for the prosecution has re-drafted the point of law for our certification, namely:

“In cases of violence should the Jury be directed in inferring the necessary intent (namely, intention to kill or cause grievous bodily harm in the present case) to focus on the blow or blows causative of the prohibited outcome (namely, death in the present case) and not on all the circumstances, including all the blows struck or other matters capable of demonstrating the Defendant’s intent?”

5.We did not doubt that in considering the question of intention to kill or to cause grievous bodily harm, the jury should be directed to consider all the circumstances of the case including all the blows struck.

6.We wrote at paragraphs 39, 44 and 45 of our judgment:

“39. Whether a punch to the face could support an intention to cause grievous bodily harm is a jury question to be decided according to the circumstances of each case, including but not limited to the physique of the parties, the amount of force used, the number of blows, the position of the parties, and the circumstances in which the blows are delivered. We do not intend to lay down a hard and fast rule as it is neither necessary nor desirable do so.

44. …Had the jury concluded that the subsequent kicking and the punch which preceded it were part and parcel of the one event in the sense that at the time the applicant punched the victim he intended to inflict further violence on him and the punch was just the beginning of the attack then such kicks could have supported an intent to cause serious bodily harm.

45.   …Indeed when those kicks were delivered, the traumatic head injuries caused by the punch, which killed the deceased, had already been inflicted.  In these circumstances it was incumbent on the judge to direct the jury to consider whether the attack was essentially a one punch attack as opposed to a broader assault upon the deceased.  The jury should have been further directed that should they conclude the former was the position then they should focus their minds on the applicant’s intention at the time he delivered his punch.”

7.In the present case, the defendant punched the deceased on the face once.  As a result, the deceased fell onto the ground, fracturing his skull and he died from the fractured skull.  The defendant continued to kick the deceased, but those kicks did not cause the death of the deceased and “the kicks could be gratuitous, separate from and independent of the earlier punch to the deceased’s face.” 

8.We took the view that, on the facts of the case, the judge should have separately dealt with the defendant’s intent in relation to the punch to the face and the subsequent kicks, otherwise “the jury could have been misled into thinking that the intent with which the subsequent kicks were inflicted necessarily determined the intent of the (defendant) when he delivered his punch.”

9.We were of the view that on the facts of the case, the proper verdict should be one of manslaughter.

10.Our decision was facts-sensitive and we do not accept that the case involves any point of law of great and general importance. The application for a certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance Cap 483 is therefore refused.

Mr Paul Loughran leading Ms Vinci Lam, SPP of the Department of Justice, for the Respondent

Mr Gerard McCoy, SC instructed by Tung, Ng, Tse & Heung assigned by the Director of Legal Aid, for the Applicant