HKSAR v. Lam Siu Fung and Another

FAMC No. 10 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 10 OF 2014 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 326 OF 2012)

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BETWEEN

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ:

1.At the conclusion of the hearing, we did not consider it necessary to call on the respondent and dismissed this application for leave to appeal, indicating we would hand down our reasons for doing so in due course, which we now do.

2.The applicants were convicted of murder on 8 August 2012.  They had participated in a group attack on a young man in a fast food restaurant in Tin Shui Wai on 2 October 2008.  Subsequently, on 5 October 2008, the young man died as a result of the injuries he sustained.

3.The applicants sought leave to appeal to this Court against their convictions[1] and from the judgment of the Court of Appeal dated 22 November 2013 [2] dismissing their applications for leave to appeal.  By its Decision dated 30 January 2014, the Court of Appeal declined to certify that points of law of great and general importance were involved.

4.In this renewed application, it was contended by Mr Gerard McCoy SC, on behalf of the 1^st applicant, that the appeal involved two points of law of great and general importance and, on behalf of the 2^nd applicant, that the appeal involved one point of law of great and general importance.

5.The points of law said to be involved in the 1^st applicant’s appeal raised the issue of the lawfulness of the verdict which was an issue argued on the appeal[3] and dealt with comprehensively by the Court of Appeal which concluded there was no merit in the ground of appeal.[4]  It was accepted that the points of law said to arise were predicated on there being ambiguity in the jury’s verdict.

6.Despite the submissions advanced by Mr McCoy on behalf of the 1^st applicant, we considered it plain that there was no ambiguity in the jury’s verdict.  Although the questions in the pro forma provided by the Judge to the jury (and therefore the questions put by the Judge’s clerk to the jury) conflated separate questions, we were satisfied that the verdict returned, of “Guilty”, could only be one of guilty to the charge of murder, both as a matter of language and also contextually.

7.That being the case, the two questions sought to be raised as points of law of great and general importance were not engaged on the facts of the 1^st applicant’s case.

8.The point of law said to be involved in the 2^nd applicant’s appeal concerned the need for a direction to the jury in accordance with the requirements of the English Court of Appeal case of R v Brown (Kevin).[5] Again, this was an issue raised on the appeal[6] and rejected by the Court of Appeal.[7]

9.We were not satisfied that the question sought to be raised was a point of law of great and general importance.

10.On the particular facts of this case, the Judge’s ruling that a Kevin Brown direction was not required could not, in our view, be faulted.  The alternative factual bases on which the 2^nd applicant might have been guilty of participating in the joint enterprise, namely that he was either person “F” who struck the victim with an umbrella stand or person “E” who kicked the victim during the assault, were not ingredients of the offence but were alternative factual bases on which the 2^nd applicant might have participated in the assault leading to the homicide.  It was the prosecution case that the 2^nd applicant was guilty on the basis of joint enterprise whether he was “E” or “F”.  The Judge’s directions to the jury on the question of whether the 2^nd applicant was aware of the possibility that a member of the group might use a weapon of the sort which caused the fatal injury to the victim were given on the two alternative bases that the 2^nd applicant might have been person “F” or person “E”[8] and Mr McCoy accepted that those directions were wholly proper.  In the light of those proper directions to the jury and since, so directed, the jury could find the 2^nd applicant was liable on the basis of joint enterprise whichever factual basis applied, it was unnecessary for the Judge to give the Kevin Brown direction (or some modification of that direction) as sought by the defence.

11.Mr McCoy relied on the case Leslie Joseph Carr[9] in support of the 2^nd applicant’s case.  However, like the Judge in his ruling declining the application for a Kevin Brown direction, we considered that case to be distinguishable on its facts.  We noted in any event that Lord Bingham CJ made it plain in that case that the court was not there laying down any general rule.

12.For these reasons, we dismissed the application for leave to appeal.

Mr Gerard McCoy SC, Mr John Marray and Mr Albert N B Wong, instructed by S.Y. Fung, Solicitors, assigned by Director of Legal Aid, for the Applicants

Mr Simon Tam SC, SADPP and Mr Leung Yuk Hang Gary, SPP (Ag), of the Department of Justice, for the Respondent