HKSAR v. Wan Kim Chung

CACC 185/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 185 OF 2012

(ON APPEAL FROM HCCC NO. 351 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 Acting CJHC (giving the Judgment of the Court):

Introduction

1.On 15 May 2013, we handed down our judgment in this matter by which we dismissed an application by the applicant (Wan Kim Chung) for leave to appeal against his murder conviction.

2.There is now a Notice of Motion which asks this Court to certify under section 32(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) that several points of law of great and general importance are involved in the decision of this Court.  Those questions are:

“For the offence of murder,

(a) Must the prosecution prove that the murderous intention was concurrent with the actual conduct which caused the death?

And

(b) Is this a matter of law for the Judge or a matter of fact and causation exclusively to be determined by the jury?”

3.This is a case where the applicant strangled the deceased until she became unconscious with the intent to kill her or to cause her serious bodily harm before he threw her body into the sea, which was what in fact killed her.

4.At paragraph 58 of the judgment, we stated:

“Thus, it is the law of Hong Kong that where a person intends to kill or inflict grievous bodily harm upon another and in doing so renders that person unconscious and then, thinking that person dead, disposes of the body in a way which causes that person’s death, the person disposing of the body will be guilty of murder if, as a matter of fact, the act rendering the person unconscious and the dispositive act causing death can properly be viewed as part of one transaction, a continuous course of conduct, or a sufficiently connected series or sequence of events.”

5.Our decision is facts sensitive and the questions posed for our consideration make no reference to the facts of the case.  Further the issue in question had been well settled and had been applied in many other similar cases, and that, in our view, a different conclusion will be inconsistent with commonsense.

6.We are not persuaded that the questions posed involve any point of law of great and general importance that requires to be dealt with by the Court of Final Appeal and the application for a certificate is accordingly dismissed.

Mr William Tam, DDPP of the Department of Justice, for the Respondent

Mr Gerard McCoy, SC, instructed by Yaddy Cheung & Co, assigned by the Director of Legal Aid, for the Applicant

Please refer to FAMC35/2013 for the relevant appeal(s) to the Court of Final Appeal.