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Kong Kwong San v Hksar

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date22 April 1999
Subject MatterMiscellaneous Proceedings (Criminal)
Judgement NumberFAMC4/1999
CourtCourt of Final Appeal (Hong Kong)
FAMC000004/1999 KONG KWONG SAN v. HKSAR

FAMC000004/1999

FAMC No. 4 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 4 OF 1999 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC No. 135 OF 1998)

_____________________

Between:
KONG KWONG SAN 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: 22 April 1999

Date of Determination: 22 April 1999

_____________________________

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

_____________________________

Mr Justice Bokhary PJ:

1. This applicant was convicted of murder. The Court of Appeal affirmed his conviction. He now seeks leave to appeal to the Court of Final Appeal.

2. The Court of Appeal has certified the involvement of two points of law of great and general importance. They are the points raised in these two questions:

"(1) Whether having regard to the resumption of sovereignty over Hong Kong by the Peoples Republic of China, the Court of Appeal erred in concluding that it was bound to follow the opinion of the Judicial Committee of the Privy Council in Luc Thiet Thuan v. The Queen [1997] AC 131 (at p.145, per Lord Goff of Chieveley).

(2) Whether the Court of Appeal erred by failing to conclude that evidence of particular features and/or characteristics of the Applicant, including mental infirmity of the Applicant ["adjustment disorder"] was admissible in the assessment of whether the partial defence of provocation applied, as well as in the assessment of whether the partial defence of diminished responsibility applied, and in failing to conclude that the Jury should have been directed accordingly."

3. Of these two questions, the first is academic. As it happens, Luc Thiet Thuan is an appeal from Hong Kong in which the Privy Council affirmed the view taken by the Court of Appeal here. But even leaving that aside, whether or not the Court of Appeal was bound to follow the view taken in Luc Thiet Thuan, the applicant could not succeed in a final appeal unless the Court of Final Appeal took an opposite view.

4. The question is whether it is reasonably arguable that such opposite view is to be preferred. This is raised by the second certified question.

5. In Luc Thiet Thuan, the Privy Council held (at p.144) that:

"there is no basis upon which mental infirmity on the part of the defendant which has the effect of reducing his powers of self-control below that to be expected of an ordinary person can, as such, be attributed to the ordinary person for the purposes of the objective test in provocation".

Their Lordships so held upon the construction of s.4 of the Homicide...

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