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Lee Kwan Kong And Another v Hksar

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date26 April 2006
CourtCourt of Final Appeal (Hong Kong)
Judgement NumberFAMC7/2006
Subject MatterMiscellaneous Proceedings (Criminal)
FAMC000007/2006 LEE KWAN KONG AND ANOTHER v. HKSAR

FAMC Nos. 7 & 8 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOs. 7 & 8 OF 2006 (Criminal)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC No. 198 of 2004)

_______________________

Between:
　 LEE KWAN KONG 1st Applicant
　 LAM WAI KIT 2nd Applicant
　 and 　
　 HKSAR Respondent

_______________________

Appeal Committee: Chief Justice Li, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 26 April 2006

Date of Determination: 26 April 2006

_______________________

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

_______________________

Mr Justice Ribeiro PJ:

1. The applicants were convicted by the jury of the murder of Yung Cho-hing. The evidence was that the deceased had suffered severe multiple injuries, both external and internal, after being subjected by the applicants and one other person to a series of prolonged and savage beatings during the period from about 11 pm on 30 March 2003 to about 11.30 pm on the next day, when he died.

2. The applicants did not give or call any evidence. They had, however, made various admissions in video-recorded cautioned statements. They admitted killing the deceased but denied liability for murder, offering to plead to manslaughter, which the prosecution rejected. Their case was that they lacked the necessary intent. The Judge, V Bokhary J, directed the jury that there was no evidence that they intended to kill the deceased but left it to them to decide whether, in administering the beatings, the applicants had intended to cause the deceased really serious injury. She also directed the jury that if they were not sure that there was such intention, they should return a verdict of guilty of manslaughter, as the applicants were inviting them to do. The jury convicted of murder.

3. Mr John Haynes appears for the 1st applicant and Mr Maurice Peter Tracy for the 2nd applicant. They both seek leave to appeal on the basis that the following point of law of great and general importance is involved, namely:

“Whether a direction along the lines recommended in R v Nedrick (1986) 83 Cr App R 267 and considered in R v Woollin [1999] 1 AC 82 should be given in all murder cases where the defendant may not have desired the result of his acts and it is common ground that there was never any intent to kill?”

4. R v Nedrick was a case where the defendant set fire to paraffin which he had poured through the letter box of a woman’s house, having earlier threatened to “burn her out”. A child in the house died in consequence. The English Court of Appeal recognised that in the great majority of cases, “particularly where the defendant’s actions amounted to a direct attack...

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