HKSAR v. Yuen Miu Fun

CACC 279/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 279 OF 2010

(ON APPEAL FROM HCCC NO. 31 OF 2010)

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BETWEEN

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Before: Hon Stock VP, Yeung VP and Kwan JA in Court

Date of Hearing: 27 November 2012

Date of Judgment: 27 November 2012

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

1.On 31 May 2012, we gave judgment by which we dismissed the applicant’s application for leave to appeal her conviction for the offence of murder.

2.An application has now been made on her behalf pursuant to s 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 for a certificate that a question of law of great and general importance is involved in the appeal.  The question proposed is:

“Where a defendant is charged with murder on the basis of being a non-principal in a join enterprise, and is tried alone, is the trial judge required to leave as a distinct issue for the jury (when the issue is not formally admitted) whether as a matter of fact and law that one of the other parties named in the particulars had committed the murder as a principal.”

3.The proposition of law as to the basis of liability for a non-principal is not in issue; so no certificate in that regard is warranted. The sole question is whether in all cases the absence of the direction referred to is necessarily fatal to the safety of the conviction.

4.In this particular case the Court said (para 95) that it would have been better had the judge said in terms that the jury was required first to be sure that Huang and Yue were themselves guilty of murder but we were satisfied that the failure to do so in this case did not render the conviction unsafe or unsatisfactory.

5.It is to be noted that it was common ground that the principals entered Hong Kong carrying a large suitcase into which the body of the victim was ultimately placed.  It was common ground that they placed a bag over her head and strangled her neck with wire and then placed her body into the suitcase which they had brought in to Hong Kong.  At trial, the applicant’s counsel had accepted that when Huang and Yue arrived in Hong Kong with a large suitcase it was not difficult to infer that right from the start it was their intention to kill the deceased but it was his suggestion that their action in killing her went outside what they had agreed with the applicant. (see paras 33 and 34 of this Court’s judgment).

6.It follows that this Court’s decision as to the failure to give the express direction was highly case and fact specific, wherefore we are of the view that a certificate is not justified and accordingly we decline to grant it.

Mr Simon Tam, SADPP, instructed by Department of Justice, for the Respondent

Mr Gerard McCoy, SC, instructed by W.K. To & Co., assigned by Director of Legal Aid, for the Applicant