HKSAR v. Chung Chi Fai

FAMC No 52 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 52 OF 2014 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACC NO 497 OF 2012)

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BETWEEN

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REASONS FOR DETERMINATION

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Mr Justice Tang PJ (Delivering the reasons of the Appeal Committee):

1.The applicant applied for leave to appeal on the ground that he had suffered substantial and graveinjustice.  At the conclusion of the hearing we dismissed the application and these are our reasons.

2.The applicant was convicted of wounding with intent by a jury and sentenced to imprisonment for 17 years.  The prosecution case was that whilst the victim was having a meal at a cooked food store, the applicant approached him and cut his neck with a sharp object.  The laceration on the victim's neck was 25 cm long.  It was shallower on both ends but deeper in the middle.  It went deep beyond the subcutaneous fat, part of it even went beyond the subcutaneous tissues.  The victim is lucky to be alive.

3.The prosecution relied on the identification of the applicant.  The defence was mis-identification.  Not surprisingly, it was not the defense case that the person who slit the throat of the victim did not or might not have intended to cause grievous bodily harm. However, Barnes J directed the jury that the mens rea for the offence required the jury to be satisfied either that the applicant intended to cause grievous bodily harm or was reckless.

4.On appeal, Mr David Ma, who also appeared before us on this application but not at trial, submitted that Barnes J erred in directing the jury that the mens rea for the offence included recklessness.  The Court of Appeal agreed and held that the mens rea for the charge required actual intent to cause grievous bodily harm.  However, the Court of Appeal upheld the conviction.  Effectively they applied the proviso because they were satisfied that:

“37. … any reasonable tribunal would inevitably have found the applicant guilty of wounding with intent … the verdict of guilty against the applicant does not involve any miscarriage of justice.”

5.Mr David Ma drew our attention to s 65A of the Criminal Procedure Ordnance Cap 221, which provides that:

“(1) A court or jury, in determining whether a person has committed an offence -

(a) shall not be bound in law to infer that he intended or foresaw a result of his acts or omissions by reason only of its being a natural and probable consequence of those acts or omissions; but

(b)  shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.”

6.But, with respect, the Court of Appeal did not decide that the jury was bound in law to infer that the applicant had the requisite intent, rather they decided that, on all the facts, the jury would inevitably have come to the same conclusion if they had been properly directed:a conclusion which was properly open to them. That being so, it was not reasonably arguable that the applicant had suffered any substantial or grave injustice.

Mr Martin Hui, Senior Assistant Director of Public Prosecutions and Ms Claudia Ng, Acting Senior Public Prosecutor of the Department of Justice, for the respondent

Mr David Ma, instructed by Ho Tse Wai, Philip Li & Partners, assigned by Director of Legal Aid, for the applicant