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Hksar v Lam Chi Kwong

Judgment Cited in Precedent Map Related
Vincent
Judgment Date13 July 1998
Year1998
Citation[1998] 2 HKLRD 247
Judgement NumberFAMC10/1998
Subject MatterMiscellaneous Proceedings (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FAMC000010/1998 HKSAR v. LAM CHI KWONG

FAMC000010/1998

FAMC No. 10 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 10 OF 1998 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC 354 OF 1997)

____________________

Between :
LAM CHI KWONG Applicant
AND
HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent

____________________

Appeal Committee : Mr Justice Litton, PJ, Mr Justice Ching, PJ and Mr Justice Bokhary, PJ

Date of Hearing : 13 July 1998

Date of Determination : 13 July 1998

___________________________

D E T E R M I N A T I O N

___________________________

Mr Justice Litton, PJ:

1. This is the determination of the Appeal Committee.

2. On 3 June 1997 the applicant was convicted of murder after a jury trial in the High Court. His appeal against conviction was dismissed by the Court of Appeal on 25 March 1998. The applicant then asked the Court of Appeal to certify points of law of great and general importance for consideration by the Court of Final Appeal but this was refused. So the applicant renews the application before us under s32(3) of the Hong Kong Court of Final Appeal Ordinance asking us at the same time to grant leave out of time to appeal.

Background facts

3. The facts giving rise to the conviction for murder are well summarised in the Court of Appeal's judgment as follows:

" The Applicant and his brother operated a car park. Disputes had arisen over the years with others. The Applicant bought a hand gun and ammunition and kept it at the car park.

On 2nd April 1996, a dispute arose between the deceased's group and the Applicant's brother. After this, the Applicant spoke to his brother. About 15 minutes later, the Applicant went armed with the gun and when he was not less than 24 inches from the deceased, he fired a well-aimed shot into the deceased's chest. The Applicant then left the scene and went into hiding. When he was eventually found, following an attempt to commit suicide, the Applicant gave an account to the police in which he said that he had walked up to the deceased and said to him 'Don't make so many troubles'. He then took out the gun that he was carrying, wanting to scare the deceased. Unpredictably the deceased had thrown himself at the Applicant and in the 'scrimmage' the Applicant 'had pulled the trigger and discharged one shot'.

However, before his attempt to commit suicide he had written a letter in which he said 'I went near (the deceased) and fired one shot'.

Two ballistics experts agreed that the minimum firing range for the fatal shot was 24 inches away from the body. This range accorded with the evidence given by two eye-witnesses who saw the Applicant pull out a gun and fire it when he was between 3 and 5 ft. away from the deceased.

The defence at trial did not deny that the Applicant had committed an unlawful act resulting in the death of the victim, in that he had at the very least pointed a loaded gun at the deceased. The defence relied firstly on a lack of intent at the time when the gun was fired and secondly on a defence of manslaughter by reason of diminished responsibility."

The Court of Appeal's judgment

4. The Court of Appeal, in entertaining the appeal, found that in one aspect of the judge's summing-up there was a material irregularity. They concluded, however, that no miscarriage of justice had actually occurred so they applied the proviso to s83(1) of the Criminal Procedure Ordinance and dismissed the appeal.

The "material irregularity"

5. The point arose in this way: In his address to the jury defence counsel had used inflammatory language such as "he is on trial for his life and you hold...

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