Wan Kim Chung v. HKSAR

FAMC No. 35 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 35 OF 2013 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 185 OF 2012)

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Between:

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ:

1.We dismissed this application for leave to appeal and stated we would hand down our reasons later.  These are our reasons.

2.The applicant was tried for murder.  With the intention of killing or causing grievous bodily harm, the applicant strangled the deceased.  There was evidence to go to the jury on the issue of provocation for the strangulation. However, the victim did not die as a result of the strangulation.  Instead, about four hours later, the applicant threw the deceased into the sea in an attempt to dispose of her body, in the belief that she was already dead.  When the body was recovered, a post mortem examination determined that the cause of death was drowning.

3.The prosecution’s case was that the applicant threw the deceased’s body into the sea knowing she was still alive, alternatively that he did so mistakenly believing her to be dead but that the disposal of the deceased’s body at sea was part of the same transaction or series of events that culminated in her death.

4.The jury was sure that the applicant was not provoked into strangling the deceased and found him guilty of the murder of the deceased.

5.The applicant’s appeal to the Court of Appeal against conviction was dismissed[1] and his application for certification of points of law of great and general importance was also dismissed.[2]  The applicant renewed the latter application for leave to appeal before us.

The basis ofthe application

6.The applicant contended that the following points of law of great and general importance were involved, namely:

(1) “Are there any exceptions, and if so what, to the requirement in criminal law that mens rea and actus reus temporally coincide?”

(2) “Is the issue of causation a matter of fact to be left exclusively to the jury to decide in determining whether independent acts causing the death of the deceased ought to be viewed as part of one transaction?”

7.It is a trite legal principle that, in criminal law, there must be a temporal coincidence of the mens rea and actus reus.  This is the doctrine of concurrence.[3] The applicant contended that the above questions were raised in this case because, on his evidence that he believed the deceased to be dead when he threw her body in the sea, his murderous intent at the time of the strangulation no longer existed at that time.

8.The applicant also contended that there was a reasonably arguable claim of grave and substantial injustice based on the Judge’s summing up.  It was contended that the Judge failed to leave to the jury the possible alternative verdicts of attempted murder or causing grievous bodily harm[4] for the strangulation and manslaughter for the drowning.  It was also said that the Judge was wrong to leave, as the only alternative, manslaughter by reason of provocation in relation to the strangulation, since that act did not kill the deceased.

The single transaction rule

9.As an exception to the concurrence rule in cases of murder, where a subsequent act is part of the same transaction or series of events, the accused’s intention to kill or cause grievous bodily harm when committing a prior act in that same transaction will be sufficient mens rea for the offence of murder at common law.  This principle, known as the single transaction rule, was established by the Privy Council in Thabo Meli v R [1954] 1 WLR 228, a case involving a preconceived plan to kill but which involved the separate acts of striking the victim over the head (which did not kill him) and rolling what was believed to be his dead body over a cliff to make the death appear to be the result of an accident (as a result of which he died from exposure).

10.Thabo Meli has been consistently followed in England and Wales, including in cases in which there has been no preconceived plan to kill.[5] A similar approach was applied in Fiji in Tara Chand v R [1986] 14 Fiji LR 73.

11.The principle has been applied in this jurisdiction in a number of cases.  The first is R v Hui Yiu Fai [1993] 1 HKC 223, in which the Court of Appeal applied Thabo Meli and Tara Chand.  It was held that the absence of a preconceived plan to kill was not a bar to the application of the one transaction rule.  The single transaction rule, notwithstanding the absence of a preconceived plan, was also applied by the Court of Appeal in two subsequent cases: HKSAR v Lam Chun-wah [1999] 3 HKLRD 381 and HKSAR v Cheung Ki-wing [2002] 1 HKLRD 225.

No point of law of great and general importance

12.Mr Gerard McCoy SC, on behalf of the applicant, invited us to grant leave on the basis that the single transaction rule should be limited to situations involving a preconceived plan to kill and that Hui Yiu Fai should be overruled.  He invited us to adopt the causation approach instead, which requires that the individual acts constitute a substantial and operating cause in the deceased’s death.

13.Notwithstanding academic criticism in other jurisdictions, the single transaction rule is now well-established in this jurisdiction even in the absence of a preconceived plan.  We consider that the rule fits with ordinary ideas of justice and commonsense consistent with the moral culpability for the offence of murder and that it is a straightforward rule for the jury to apply, particularly in cases such as the present where the subsequent act was done in order to conceal the commission of the earlier act.

14.In any event, even if the causation approach were applied in substitution for the single transaction rule in this case, we are satisfied that the jury would inevitably have decided that the strangulation was a substantial or operative cause of the death by drowning, since it is clear that the deceased’s being rendered unconscious by the strangulation prevented her from saving herself or attracting assistance when she was thrown into the sea.

15.In the circumstances, we would not grant leave to appeal in respect of the first question posed.

16.The second question posed does not, in our view, arise in this case. The material part of the Judge’s summing-up to the jury[6] was a proper direction on the basis of Thabo Meli and the Hong Kong cases which have applied the single transaction rule.  The direction was clear and the Judge left to jury the question of the connection between the act of strangulation and the dumping of the deceased’s body in the sea.  It is not correct to suggest, as was contended on behalf of the applicant, that the Judge removed from the jury the factual issue of whether the first and second act were one sequence of events.

No substantial and grave injustice

17.The point that the Judge’s summing-up wrongly failed to direct on provocation in respect of the subsequent act of dumping the deceased’s body at sea was not taken before the Court of Appeal.[7]

18.Even if this Court was to entertain the point, we did not consider that it raised an arguable appeal that a substantial and grave injustice had been done.  There is no accepted norm in a case in which the single transaction rule applies that the jury be separately directed in relation to provocation in respect of the subsequent act which actually causes the death.  This would be potentially confusing for jurors and, in the absence of evidence of the continuing provocation to the point in time when the second act was committed, it would be illogical. 

19.On the other hand, there is no illogicality in directing the jury on provocation in relation to the first act if the jury is also being asked to consider the two separate acts as part of the same single transaction.  If the jury accept that the defendant was provoked in relation to the first act, and also accept that the two acts were part of the same single transaction, then their acceptance that the defendant was provoked will mean that their verdict should be not guilty of murder but guilty of manslaughter by reason of provocation.

20.In the present case, the jury was properly directed in accordance with the single transaction rule and, the applicant having accordingly been convicted, no substantial and grave injustice resulted from the Judge’s not leaving to the jury the alternative verdicts of attempted murder, causing grievous bodily harm and unlawful act manslaughter.

Conclusion

21.For these reasons, the application for leave to appeal was dismissed.

Mr Gerard McCoy SC and Ms Denise Souza instructed by Yaddy Cheung & Co. and assigned by the Legal Aid Department for the Applicant

Mr William Tam, DDPP and Mr Ivan Cheung, PP of the Department of Justice for the Respondent