Wan Kim Chung v Hksar

Judgment Cited authorities (6) Cited in Precedent Map Related
Judgment Date08 November 2013
Year2013
Judgement NumberFAMC35/2013
CourtCourt of Final Appeal (Hong Kong)
FAMC35/2013 WAN KIM CHUNG v. HKSAR

FAMC No. 35 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 35 OF 2013 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 185 OF 2012)

____________________

Between:

WAN KIM-CHUNG (溫劍聰) Applicant
- and -
HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent

____________________
Appeal Committee: Mr Justice Ribeiro PJ, Mr Justice Tang PJ and Mr Justice Fok PJ
Hearing and Decision: 4 November 2013
Handing Down of Reasons: 8 November 2013

________________________________

REASONS FOR DETERMINATION

____________________________

Mr Justice Fok PJ:

1. We dismissed this application for leave to appeal and stated we would hand down our reasons later. These are our reasons.

2. The applicant was tried for murder. With the intention of killing or causing grievous bodily harm, the applicant strangled the deceased. There was evidence to go to the jury on the issue of provocation for the strangulation. However, the victim did not die as a result of the strangulation. Instead, about four hours later, the applicant threw the deceased into the sea in an attempt to dispose of her body, in the belief that she was already dead. When the body was recovered, a post mortem examination determined that the cause of death was drowning.

3. The prosecution’s case was that the applicant threw the deceased’s body into the sea knowing she was still alive, alternatively that he did so mistakenly believing her to be dead but that the disposal of the deceased’s body at sea was part of the same transaction or series of events that culminated in her death.

4. The jury was sure that the applicant was not provoked into strangling the deceased and found him guilty of the murder of the deceased.

5. The applicant’s appeal to the Court of Appeal against conviction was dismissed[1] and his application for certification of points of law of great and general importance was also dismissed.[2] The applicant renewed the latter application for leave to appeal before us.

The basis ofthe application

6. The applicant contended that the following points of law of great and general importance were involved, namely:

(1) “Are there any exceptions, and if so what, to the requirement in criminal law that mens rea and actus reus temporally coincide?”

(2) “Is the issue of causation a matter of fact to be left exclusively to the jury to decide in determining whether independent acts causing the death of the deceased ought to be viewed as part of one transaction?”

7. It is a trite legal principle that, in criminal law, there must be a temporal coincidence of the mens rea and actus reus. This is the doctrine of concurrence.[3] The applicant contended that the above questions were raised in this case because, on his evidence that he believed the deceased to be dead when he threw her body in the sea, his murderous intent at the time of the strangulation no longer existed at that time.

8. The applicant also contended that there was a reasonably arguable claim of grave and substantial injustice based on the Judge’s summing up. It was contended that the Judge failed to leave to the jury the possible alternative verdicts of attempted murder or causing grievous bodily harm[4] for the strangulation and manslaughter for the drowning. It was also said that the Judge was wrong to leave, as the only alternative, manslaughter by reason of provocation in relation to the strangulation, since that act did not kill the deceased.

The single transaction rule

9. As an exception to the concurrence rule in cases of murder, where a subsequent act is part of the same transaction or series of events, the accused’s intention to kill or cause grievous bodily harm when committing a prior act in that same transaction will be sufficient mens rea for the offence of murder at common law. This principle, known as the single transaction rule, was established by the Privy Council in Thabo Meli v R [1954] 1 WLR 228, a case involving a preconceived plan to kill but which involved the separate acts of striking the victim over the head (which did not kill him) and rolling what was believed to be his dead body over a cliff to make the death appear to be the result of an accident (as a result of which he died from exposure).

10. Thabo Meli has been consistently followed in England and Wales, including in cases in which there has been no preconceived plan to kill.[5] A...

Get this document and AI-powered insights with a free trial of vLex and Vincent AI

Get Started for Free

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT