IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 646 OF 1998
(ON APPEAL FROM HCCC 54 OF 1998)
|D1 LAU CHEONG alias LIU HUNG-YUK
|D2 LAU WONG
Coram: Hon Leong CJHC, Stuart-Moore VP and Yeung J
Date of Hearing: 27 June 2001
Date of Judgment: 4 July 2001
J U D G M E N T
Stuart-Moore VP (giving the judgment of the Court):
1. On 9 December 1998, the Applicants (D1 and D2 respectively) were convicted of murder, following a trial before V. Bokhary J and a jury. They were each sentenced to mandatory terms of imprisonment for life. They also faced a second count on the indictment which alleged robbery. D1 pleaded guilty to this count whereas D2 was convicted by the jury. They received concurrent sentences of six years and nine years' imprisonment respectively.
2. The Applicants sought leave to appeal against the convictions resulting from the jury's verdicts. On 21 March 2000, this court heard submissions on all except one of the grounds of appeal and, subject to argument on that ground, on 13 June 2000 we dismissed the applications. The factual background to this case is set out in that judgment.
3. The matter now comes before us for consideration of the fifth and last ground of appeal against conviction which Mr John Mullick, on behalf of D1, was unable, for reasons we shall come to later, to advance when the matter was last before this court.
4. Mr Haynes, on behalf of D2, in his amended perfected grounds of appeal dated 14 September 1999, had not included any ground which reflected Mr Mullick's fifth ground, but he indicated that he wished to adopt it.
5. The Applicants also sought leave out of time to appeal against their sentences of life imprisonment. As the ground of appeal raised an important issue of law, we granted leave to pursue this application out of time. This was not opposed by Mr Blanchflower, SC, on behalf of the Respondent.
6. In ground 5, relating to the conviction of D1, Mr Mullick complained that the judge had erred in law when she did not withdraw the murder count from the jury at the conclusion of the prosecution's case on the ground that:
"(1) for the prosecution to prove the common law offence of murder against (D1) .... it was necessary to adduce sufficient evidence that he either intended to kill the deceased or, at least, at the material time, he possessed the subjective foreseeability that death might result from his acts;
(2) proof of anything less was insufficient to prove the common law offence of murder;
(3) to proceed against (D1) on the basis that he could, in the absence of any intent to kill, be convicted of the offence of murder by proof only that he intended to inflict, or cause, grievous bodily harm to the deceased is contrary to Articles 28 and 87 of the Basic Law of the Hong Kong Special Administrative Region and Articles 5, 10 and 11 of the Hong Kong Bill of Rights (Ordinance), Cap. 383."
7. The reason that neither Mr Mullick nor Mr Haynes, after his adoption of the points in ground 5, could expand upon this ground before was that Mr Mullick, as well as Mr Bruce, SC, who was then appearing on behalf of the Respondent in this matter, were also instructed in HKSAR v Coady which is now reported at  2 HKC 12. In that case, effectively, the same points of law were being raised. It was therefore convenient to adjourn the proceedings in this matter until the points at issue had been determined in Coady.
8. The judgment in Coady was handed down on 18 May 2000. On the same day, Mr Haynes submitted a written argument "to take into account (the judgment) in HKSAR v Coady, CA 119/99 and (D2's) position as a secondary party". Mr Haynes was then seeking to distinguish the decision in Coady, which dealt only with the position of an alleged primary offender in murder, from that of a secondary offender.
9. Before this matter could be re-listed, the same points which Mr Haynes was seeking to raise on behalf of D2 were taken in HKSAR v Pun Ganga Chandra and Others which is now reported at  2 HKC 192. We shall return to this later.
10. Mr Mullick's fifth ground, which we have already set out, was answered in full in Coady (above). In that case, it was decided that the mens rea of murder, which includes an intention to cause grievous bodily harm (the "grievous bodily harm rule"), did not offend Article 5(1) of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Bill of Rights). Article 5(1) is also reflected in Article 28 of the Basic Law which, so far as it is relevant, reads:
".... no Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment ...."
11. The court also found that the grievous bodily harm rule did not infringe Article 10 of the Bill of Rights which provides for equality before the courts and the right to a fair and public hearing. The court held that Article 10 did not relate to the substance of the criminal law but rather to its process.
12. Finally, so far as it is relevant to this aspect of these proceedings, the court in Coady found that the grievous bodily harm rule did not infringe the provision in Article 11 of the Bill of Rights which deals with the presumption of innocence.
13. Mr Mullick, on a previous occasion when this matter came before us for mention, very responsibly indicated that he considered that this court was bound by what had been said in Coady.
14. On 6 April 2001, when the judgment in Pun Ganga Chandra and Others (above) was handed down, the correctness of Mr Mullick's stance was further...