Case Detail

CACC000403/1990

Headnote

S.83XX (3)(a) Cap. 221: Costs where retrial ordered: Hong Kong Bill of Rights Ordinance Cap. 383: inconsistency

IN THE COURT OF APPEAL	1990, No. 403
	(Criminal)

BETWEEN
	THE QUEEN

	AND

	MAN WAI KEUNG

--------

Coram: Silke, V.-P., Nazareth, J.A. & Bokhary, J.

Date of Hearing: 17th June 1992

Date of Judgment handed down: 7th July 1992

-----------------------

J U D G M E N T

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Silke, V.-P.:

1. Man Wai Keung - "the claimant"'- was convicted after trial before Kaplan, J. and a jury of murder. The killing took place on 14th December 1988. On 20th December 1991 another Division of this court allowed his appeal against that conviction. The appeal having been brought under the provisions of section 82 of the Criminal Procedure Ordinance, Cap. 221 - "the Ordinance", the court went on to exercise its power under the provisions of section 83E of the Ordinance and ordered the appellant to be retried on a fresh indictment containing a count of murder.

2. That retrial took place before Leonard, J. on 15th March 1992. At it the Crown accepted a plea of guilty to manslaughter by reason of diminished responsibility. The claimant was sentenced to 4 1/2 years imprisonment. This had the effect of his immediate release.

3. Subsequent to the order for retrial, but before that retrial took place, the claimant made an application for costs. While this late application was not in accordance with the practice suggested in R. v. Kwok Moon Yan [1989] 2 HKLR 396 at 402, the Crown takes no point.

4. Section 83XX relates generally to the award of costs by the Court of Appeal and the principles to be applied where there is such an application were set out in Kwok Moon Yan.

5. An appellant making a claim for costs in circumstances such as this is faced with the statutory provisions contained in section 83XX(3) of the Ordinance. That reads:

"(3) No order shall be made under this section where -

(a) in the case of an appeal referred to in subsection (1)(a), the appellant is ordered under section 83E to be retried;

(b) in the case of an appeal referred to in subsection (1)(b), the provisions of section 83K(4)(a) apply; or

(c) in the case of an appeal referred to in subsection (1)(c), the provisions of section 83N(3) apply."

6. Mr. McCoy who appears for the claimant here - and the claimant has been privately represented, that is as opposed to being granted legal aid, throughout all the proceedings relevant to him - seeks to have this court find that the provisions of section 83XX(3)(a) - which for ease of reference, I shall from hereon call "the provisions of the subsection" - is inconsistent with Articles 1, 10, 11(1), 11(4) and 22 of the Hong Kong Bill of Rights Ordinance, Cap. 383 - "the Bill". This is in the nature of a test case.

7. While we are not directly concerned with the provisions of section 83XX(3)(b) and (c) their existence in the subsection calls for some comment. Where there is an appeal under the provisions of section 831 of the Ordinance - against a verdict of not guilty by reason of insanity - then section 83K(4)(a) which reads:

"(4) Where an appeal under section 831 is allowed, the following provisions apply -
(a) if the ground, or one of the grounds, for allowing the appeal is that the finding of the jury as to the insanity of the accused person ought not to stand and the Court of Appeal is of opinion that the proper verdict would have been that he was guilty of an offence (whether the offence charged or any other offence of which the jury could have found him guilty), the Court of Appeal -
(i) shall substitute for the verdict of not guilty by reason of insanity a verdict of guilty of that offence; and
(ii) shall have the like powers of punishing or otherwise dealing with the appellant, and other powers, as the court of trial would have had if the jury had come to the substituted verdict; and ...",

applies.

8. Appeals brought under the provisions of section 83M are appeals against a finding, under section 75 of the Ordinance, on the issue of a person's fitness to be tried. A person in respect of whom the jury has returned a finding that he is under disability may appeal to the Court of Appeal against that finding. Then section 83N(3), which reads:

"(3) Subject to subsection (2) of this section, where an appeal under section 83M is allowed, the appellant may be tried accordingly for the offence with which he was charged, and the Court of Appeal may make such orders as appear to it to be necessary or expedient pending any such trial for his custody, admission to bail or continued detention under the Mental Health Ordinance (Cap.136); ...",

applies.

9. There is a certain Herbertian logic in the juxtaposition of the provisions of paragraphs (a), (b) and (c) in section 83XX(3). In each case, although an appeal is successful, consequential orders are made - in the case of a successful appeal against the verdict of insanity, the substitution of a verdict of guilty in respect of the offence charged; where the appellant is successful in having the finding of unfitness to be tried overturned, then a retrial for that particular offence. While "the provisions of the subsection" relate to a retrial after a conviction has been set aside there the similarity ceases. However I do not need, further in these proceedings, to consider the apparent dichotomy.

10. I would say at the outset that Mr. Bruce, who appears for the Crown, made no attempt to suggest that "the provisions of the subsection" are rational. He told us that a sub-committee in-the Attorney General's Chambers has recommended that it be deleted from the Ordinance. He stigmatised its provisions as "dotty". It was, however, his contention that, however irrational the provisions may be, they do not conflict and are therefore not inconsistent with any of the Articles of the Bill. Whatever course the claimant may have open to him in relation to the irrationality of the provisions it does not lie within the confines of the Bill.

11. It is Mr. McCoy's contention that "the provisions of the subsection" are inconsistent with the guarantee of equality and of non-discrimination as set out in Article 22 of the Bill. He bases that argument in part at least on the phrase in the Article "or other status". Article 22 in full reads:

" Equality before and equal protection of law

12. All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origins, property, birth or other status."

13. They are also, contends Mr. McCoy, inconsistent with the provisions of Article 10 which guarantees equality before courts and tribunals - and on this he places greater reliance. Article 10 reads:

'' Equality before courts and right to fair and public hearing
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties; so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children."

14. Mr. McCoy further contends that they are inconsistent with the rights guaranteed in Article 1, reading this in conjunction with the provisions of Article 10 of the Bill. Article 1 reads:

"Entitlement to rights without distinction

(1) The rights recognised in this Bill of Rights shall be enjoyed without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

15. Those particular contentions he seeks to support by submitting that the prohibition against the granting of costs to a successful appellant who was ordered to be retried acts as a deterrent to any person's legitimate exercise of his right of appeal, this because it may have a direct financial impact on the successful appellant's ability to arrange for counsel of his choice at the subsequent retrial.

16. Articles 1 and 22 guarantee the non-discriminatory enjoyment of the rights set out in the Bill. Legislation will be discriminatory within the terms of Article 22 if it requires differential treatment of persons of varying status unless there is an objective or reasonable justification for that difference in treatment.

17. Mr. McCoy referred us to the General Comment of the United Nations Human Rights Committee of 21st November 1989 which relates to the general comments on non-discrimination adopted by the Human Rights Committee at its 948th meeting (37th session) held on 9th November 1989.

18. The Human Rights Committee, having noted that the International Covenant on Civil and Political Rights - "the Covenant" neither defines the term "discrimination" nor indicates what constitutes it, goes on to make reference to a provision in the International Convention on the Elimination of All Forms of Racial Discrimination which states that the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of the human rights and fundamental freedoms in the political, economic, social cultural or any other field of public life. In its paragraph 7 the Committee went on to say that:

"... the term 'discrimination' as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, [cf Articles 1 and 22 of the Bill] and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise: by all persons, on an equal footing, of all rights and freedoms."

19. The Committee recognised, however, that the enjoyment or rights and freedoms on an equal footing, does not mean identical treatment in every instance. It concluded, in its paragraph 13, that:

"... not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant."

20. Mr. McCoy's reliance on Article 11 of the Bill has particular reference to its sub-articles (1) and (4). They read:

"(1) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law."

and

"(4) Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law."

21. It is his contention that the legislature by enacting the provisions of the subsection is, in reality, imposing legislative restrictions upon the presumption of innocence. For if, upon a conviction being overturned, the presumption of innocence resurrects itself, as indeed it must, then to treat a successful appellant ordered to be retried in a manner different from a successful appellant the decision in respect of whom is final is, by a side wind in denying him costs, to diminish the presumption. He has referred us to Minelli v. Switzerland (1983) 5 EHRR 554 but, with respect, that decision is a very extreme one relating as it does to a costs order in proceedings which has been discontinued because of the expiry of a limitation period. In the original matter there was a reference that Minelli would "very probably" have been convicted but for the expiry of the limitation. For a court to so find was held to be a violation of the presumption of innocence. But that, with respect, is not the position here.

22. Mr. McCoy seeks for the claimant here only a right of access to the discretion of the court. The award of costs is discretionary and Kwok Moon Yan related solely to the principles to be applied by this court in the exercise of its undoubted discretion. Mr. McCoy informs us that in Australia and New Zealand, where there has been for some considerable time a power to order retrials, there is no prohibition against the award of costs, the award being discretionary.

23. For myself, I would not treat "the provisions of the subsection" as being a legislative finding that a person once convicted is to be treated as guilty until the final termination of all proceedings against him. At any retrial the presumption of innocence would be in full flood. Further, I do not accept the contention, relevant to the provisions of Article 11(4), that the possibility of a retrial would inhibit a person in the exercise o?the rights there conferred upon him. The provisions of the sub-article are, in my view, declaratory of the position at common law and do no more than an enact in legislative form the reality which already existed. There are other matters which could equally well inhibit the fearful appellant from exercising his rights, for example, the power of the court to order loss of time in respect of unmeritorious appeals or the power of the court, when the appeal concerns sentence, to increase that sentence. These matters of themselves do not amount to either inequality before the law or to infringements of rights. These are risks which a person takes when he enters into the appellate procedure and no doubt, before he does so, he will have been properly advised of their existence. The choice remains his.

24. Mr. Bruce submits, as I have already indicated, that the issue before us is one simply of law. It is essentially Mr. Bruce's point, as I understand it, that "the provisions of the subsection" amount to a distinction which is not discriminatory. He predicates the question: Are "the provisions of the subsection" a denial of the right of access to the court's procedure: if so, then they are inconsistent with the Bill: if not, then look elsewhere. He submits that Article be read with Article 1. Articles 10 and the provisions of Article 1(1), have the does not accept Mr. McCoy's extension of other status" to include the class of the successful appellant ordered to be retried. Status, he would have it, does not enter into this matter. The claimant here has equal rights with others to come to court and to have his appeal determined within the four basic equality rights, that is: equality before the law; equality under the law; equal protection of the law; and equal benefit of the law. Having submitted that there is a limited, permissible concept under the Bill of a distinction which does not amount to discrimination, Mr. Bruce referred us to the Law Society of British Columbia v. Andrews (1989) 56 DLR (4th) of the reads, under equal the claimant must 10 of the Bill must 22, if one reads in same effect. He the phrase "or 1. There the court was considering section 15 Canadian Charter of Rights and Freedoms. That the heading "Equality before and under law and protection and benefit of law",

"15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

25. It will be immediately apparent that section 15 is in terms different to Articles 1 and 22 of the Bill. But again, this decision really relates to "status". While one reads with interest the leading judgment on the interpretation of section 15 delivered by McIntyre, J. - who dissented on the outcome - the case is not fully applicable to the circumstances we are considering; nor, in the light of the conclusion to which I have come, relevant to my decision in this application. With respect to Madam Justice Bertha Wilson, nor is that which she had to say in Turpin & Another v. R. (1989) 48 CCC 8 which also concerned section 15 of the Canadian Charter. Both - Andrews and Turpin - as adopted in R. v. Swain (1991) 64 CCC (3d) 481 - created what was termed "the enumerated analogous test" or - "the enumerated analogous grounds test". However I do not base myself on any extension to the expression "or other status", or analogy with the items of status as set out in our Articles 1 and 22.

26. I consider the "discrimination" set out in both these Articles, such as race, colour, political opinion et al, to be of general application and not as relating to something as specific as does the issue here.

27. Article l (l) provides the glass through which the rights recognised in succeeding Articles of the Bill, always bearing in mind the preamble to the Covenant, shall be considered. I am fortified in that opinion by the provisions of Article 1(2) as to male and female equality.

28. With respect to Mr. Bruce, and if I have not made specific reference to all of his submissions it is not for any lack of consideration of them, I think he predicates his arguments on too narrow a basis. What we are considering here is the fairness of the appellate procedure within the court's process and whether or not the legislation in question results in discrimination against any person who has recourse to that procedure.

Articles 10 and 22 start with declarations. Article 10 with:

"All persons shall be equal before the courts and tribunals."

and Article 22 with:

"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law."

29. Article 10 then goes on to spell out certain basic rights which exist resulting from its declaratory opening. Article 22 enjoins, in its succeeding sentence, the legislature to enact laws which both prohibit discrimination and guarantee equal and effective protection to all persons whatever their race, colour, religion, political opinion et al.

30. I do not accept here that Mr. McCoy's arguments as to the presumption of innocence have the force he would attach to them. That presumption is fundamental to all the criminal process and is enshrined in Article 11(1). I accept that, once an appellant has been successful in the overturning of his conviction, for whatever reason, then the presumption which died with that conviction is revived. However, I do not consider that the legislature, in enacting "the provisions of the subsection" intended to, or in fact did, by some form of side wind violate that presumption by removing the jurisdiction of this court to consider the award of costs where a re-trial has been ordered. It is more probable that it had in mind the fact that there was not, on the face of the matter, finality. Finality is itself recognised in the provisions of Article 11(5) of the Bill. This does not occur until the conclusion of any retrial and any appellate issue which may arise from it. The present inhibition placed upon the courts prohibiting an appellant, who has been directed to be retried, from seeking access to the discretion of the court as to the award of costs does not relate to the presumption of innocence.

31. I am fortified in this conclusion by the practice pertaining in England [cf. section 16(11) Prosecution of Offences Act 1985] that, where a retrial has been ordered - and it must be remembered that the power to so order was a very limited one until recent days - the High Court on the retrial could itself, if it thought proper, make an order for costs relating to all matters which had gone before including the hearing in the Court of Appeal. Were there such statutory provisions contained in section 83XX then the issue which we have for consideration would not have arisen.

32. I would prefer to base my consideration of this issue, and my decision, upon the declaratory first sentence of Article 10. A distinction has been drawn between two classes of appellant, the entirely successful one in the sense that he is not placed in further jeopardy, and the successful one who is.

33. Distinctions can be lawful; discrimination may amount to an unlawful distinction. I use the word "can" and the word "may" in that sentence because, when considering both of those matters within the context of the Bill, one must look to the rationality, the reasonableness and the proportionality of the distinction or discrimination. It is more likely, given the nature of and reason for the existence of the Bill, that a discrimination, as opposed to a distinction, could be held to be inconsistent with it. One must look to the interests of society and to all the circumstances which the legislature had in mind when creating what the courts find to be a distinction amounting to a discrimination. As was said in Sin Yau Ming at p.145 L42-45:

"The interests of the individual must be balanced against the interests of the society generally but, in the light of the contents of the Covenant and its aims and objects, with a bias towards the interests of the individual."

34. Discrimination, in my view, can amount to something which encroaches upon the declarations contained in the opening sentences of both Article 10 and Article 22. It is not confined to the matters set out in Articles 1 and 22 as illustrative of forms of discrimination. Here, it has a broader concept within the equality which is declared to exist between all persons who have recourse to the court's process and relates to the fairness of that process.

35. In my judgment, to deprive a person from access to the court's discretion for no apparent good reason - Mr. Bruce has, by the very nature of his argument, not sought to justify^, this deprivation - violates the declaratory opening of Article 10. It is not "a reasonable limit" on equality as can be "demonstrably justified in a free and democratic society", SinYau Ming p.142 adopting the words of Dickson, C.J.C. in R. v. Oakes (1986) 26 DLR (4th) 200. Some people are not less equal before the law and less entitled to the protection of the law than others. Whether or not a successful appellant who has been ordered to be retried will get his costs, or any portion of them, of the process which has gone before that decision was made will, of course, lie for the unfettered discretion of this court applying the principles which Kwok Moon Yan attempted to set out. The fact that a retrial has been ordered and the reasons for the making of such an order will be additional factors to be considered in the exercise of that discretion.

36. In the event, I would find that section 83XX(3)(a) violates the provisions of Article 10 of the Bill and, insofar as that be so, is inconsistent with it. As it does not admit of a construction consistent with the Bill it is, under the provisions of section 3(2), to the extent of that inconsistency repealed as from 8th June 1991.

Nazareth, J.A.:

37. My Lord having in his judgment explained the facts and counsel's submissions, I am enabled to proceed directly to what I regard as the crucial matters in contention.

38. Section 83XX(3)(a) provides in effect that no appellant who successfully appeals against conviction shall be entitled to costs if he is ordered to be re-tried.

39. That, it is claimed in this appeal, is discriminatory and inconsistent with the Bill of Rights, specifically the right to equality before the courts, enshrined in Article 10 in the following words "All persons shall be equal before the courts and tribunals". If inconsistent with the provisions of the Bill of Rights, s. 83XX(3)(a) would be automatically repealed by s. 3(2) of the Hong Kong Bill of Rights Ordinance (Cap. 383).

40. It was held in R v Sin Yau-ming [1992] 1 HKCLR 127 that in interpreting the Hong Kong Bill of Rights, this Court can be guided by decisions of supra-national tribunals such as the European Court of Human Rights, and that even greater assistance can be derived from decisions of the domestic court:; in jurisdictions, such as the United States of America and Canada, which have constitutionally entrenched Bills of Rights. It was held also, that although the Hong Kong Bill did not contain a "justification" provision similar to s. 1 of the Canadian Charter of Rights (i.e. "The ... Charter ... guarantees the rights and freedoms set cut in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society ... "), such a provision is to be implied. Finally in addressing a challenge to a statutory provision on the ground of inconsistency with the Bill of Rights, the court in Sin Yau-ming applied the rationality test and the proportionality test.

41. Reverting to Article 10 of the Hong Kong Bill, the provision of the Canadian Charter that most closely corresponds to it is s. 15(1):

"Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability".

42. In Law Society of British Columbia v Andrews (1989) 56 DLR (4th) 1, a statutory citizenship requirement for entry into the legal profession was challenged as being in contravention of s. 15(1) of the Canadian Charter. The matter was considered in the Supreme Court of Canada in two stages. First, whether the requirement was a mere distinction or differentiation in treatment or whether it was discriminatory. And second, if it was discriminatory and infringed the right to equality guaranteed in s. 15, whether under s. 1 of the Charter, the requirement was a reasonable limit "demonstrably justified in a fair and democratic society". In the absence in Hong Kong o?an actual provision corresponding to s. 1 of the Charter (which in relation to s. 15 appears to have produced that approach) and in the particular circumstances of this appeal, it does not seem to me to be either necessary or, indeed, of any significant assistance to address the matter in two such separate steps. Nor, given the relative clarity and simplicity of the position before us, is it necessary to resort to analysis of quite the depth and learning in relevant Canadian authorities like R v Oakes (1986) 26 DLR (4th) 200; Law Society of British Columbia v Andrews, and Turpin & Another v R (1989) 48 CCC 8.

43. Whichever of the three approaches canvassed by McIntyre J in Andrews, at pp 21 to 24, is adopted (and like my Lord the Vice-President, I do not find it necessary to resort to any "enumerated analogous test" to exclude from the discretion to award costs, appellants who are ordered to be retried) it is plain that s. 83XX(3)(a) is discriminatory in relation to such appellants. That becomes even clearer in the light of the considerations concerned perhaps more with the rationality and proportionality tests and the implied "justification" provision.

44. In the light of the guidance afforded by the Canadian authorities referred to, one turns then to identify the necessary or desirable social objective of the legislation, only to encounter considerable difficulty in doing so, even if it be related to finality, as one would suppose. Small wonder then that s. 83XX(3)(a) has been characterised as "dotty" by Mr. Bruce, counsel for the Crown. Without even an identifiable objective, a fortiori, a necessary or desirable objective, s. 83XX(3)(a) does not begin to measure up to the rationality and proportionality tests, and to attract the requisite justification of the kind mentioned. On the contrary the obvious inequality, discrimination, and even injustice that it manifestly inflicts is unnecessary and, so far as can be seen, serves no desirable purpose. For the foregoing reasons, and for all the other reasons given by my Lord the Vice-President, I also find that paragraph (a) of s. 83XX(3) infringes Article 10 of the Bill, and does not admit of a construction consistent with the Hong Kong Bill of Rights Ordinance. It therefore stands repealed to the extent of the inconsistency. It follows that the appellant is not barred by s. 83XX(3)(a) from applying for costs.

Bokhary, J.:

45. This case concerns the costs of persons whose appeals against conviction are allowed by this Court.

46. If not for subsection (3)(a) of section 83XX of the Criminal Procedure Ordinance, Cap.221, all such persons would be entitled to ask this Court to exercise its discretion to order that their costs be paid out of public funds. For, in the absence of that subsection, that would be the position brought about by subsection (2) of the same section : all appellants whose appeals against conviction are allowed could ask for costs out of public funds; and the Court could say "yes" or it could say "no", depending on what is just in all the circumstances.

47. But what subsection (3)(a) does is in effect this. It divides such persons into those who are ordered to be retried and those: who are not. And, while leaving the latter free to seek costs out of public funds, it precludes the former from doing so.

48. The question for our decision is whether subsection (3)(a) is consistent with the Bill of Rights. For if it is not, then it will have been repealed by the Bill.

49. Article 10 of the Bill of Rights entrenches two fundamental rights, namely, the right to equality before the courts and the right to a fair and public hearing.

50. As to the first of those two rights, the article states that :-

"All persons shall be equal before the courts and tribunals."

51. The statement is a bare one. But it is not, in the circumstances, necessarily any the worse for that. And, in any event, we are by no means in uncharted waters. First of all, the concept of equality before the courts is no stranger to the Common Law. Secondly, turning to Equity, the equitable maxim that "equality is equity" underlines that the requirement of fairness is the reason for the insistence on equality. Thirdly, we are now concerned with equality before the courts as an entrenched fundamental human right, so that no departure from its strict terms is valid unless such departure is necessary, proportionate to such need and rational. And finally, at no time does commonsense go out the window when these things are judged.

52. Clearly, there is no requirement of literal equality in the sense of unrelentingly identical treatment always. For such rigidity would subvert rather than promote true even-handedness. So that, in certain circumstances, a departure from literal equality would be a legitimate course and, indeed, the only legitimate course. But the starting point is identical treatment. And any departure therefrom must be justified. To justify such a departure it must be shown : one, that sensible and fair-minded people would recognize a genuine need for some difference of treatment; two, that the difference embodied in the particular departure selected to meet that need is itself rational; and, three, that such departure is proportionate to such need.

53. Having said that, I turn now to the concept of being "before" the courts. Being before a court involves being amenable to its jurisdiction and having access to that jurisdiction. And a court's jurisdiction comprises of what it can do to you and what it can do for you.

54. So, if what a court can do to you is more than what it can do to others or if what it can do for you is less than what' it can do for others, then, unless the difference can be justified in the way which I have explained, you are not equal before that court.

55. Such inequality is inconsistent with article 10 of the Bill of Rights. Any pre-existing legislation creating such inequality will have been repealed by the Bill by reason of such inconsistency. And, by virtue of the Hong Kong Letters Patent 1917 to 1991 (Nos 1 and 2), future legislation creating such inequality is prohibited.

56. Turning from the general, I revert to the particular. As I. have already pointed out, subsection (3)(a) of section 83XX of the Criminal Procedure Ordinance precludes appellants whose convictions are quashed but who are ordered to be retried from doing what other appellants whose convictions are quashed are entitled to do, namely, seek costs out of public funds.

57. Now, it is true that where no retrial is ordered there is an element of finality which is absent where a retrial is ordered. And the absence of such finality may - as Mr McCoy for the present appellant accepts - sensibly and fairly be viewed as a factor to be taken into account in deciding whether or not to award an appellant costs out of public funds. But there may be any number of cases in which it would be appropriate to make such an award even after that factor has been taken into account.

58. There is no need to take away the power to make such awards whenever a retrial has been ordered. Such powers are discretionary in nature. And where the particular circumstances of the case are such that the absence of finality gives rise to an adequate basis for witholding such an award, the Court would always have a discretion to withold it for that reason.

59. There being simply no need for the departure created by the subsection, one cannot begin to justify it. So the question of such departure being rational and proportionate does not even arise. That saves me from having to find appropriate language by which to express my acceptance of the substance of the concession which Mr Bruce for the Crown was constrained to make, in the course of the argument, that the subsection was, in the word which he chose, "dotty".

60. In my judgment, subsection (3)(a) of section 83XX of the Criminal Procedure is inconsistent with article 10 of the Bill of Rights. So it is Bill inconsistent and repealed. All appellants whose appeals against conviction have been allowed, including those who have been ordered to be retried, are entitled to ask this Court to exercise its discretion to order that their costs be paid out of. public funds. And the Court will say "yes" if it is just to so order and "no" if it is not.

61. That is the general result of our decision. Its immediate result is, as my lord has indicated, that the appellant in the present case, whose appeal against conviction was allowed, may - on a date to be fixed - seek an order that his costs be paid out of public funds, even though he was ordered to be retried. And whether he gets such an order as to costs will depend of course on whether it is just that he should get one in all the circumstances as they appear after argument.

Silke, V.-P.:

62. We shall, for administrative reasons, hand down this judgment. Mr. McCoy can, should he so see fit, make the costs application which he is now entitled to make on a date to be fixed.

(William Silke)	(G.P. Nazareth)	(S.K.S. Bokhary)
Vice President	Justice of Appeal	Judge of the High Court

Representation:

G.J.X. McCoy, Esq (So & Co.) for Applicant

A. A. Bruce, Esq. for Crown/Respondent

CACC000403A/1990

IN THE COURT OF APPEAL	1990 No. 403
	(Criminal)

HEADNOTE

Murder in which self-defence, accident and diminished responsibility were issues. It is desirable when explaining grievous bodily harm to the jury to use the words "really serious bodily harm". Since the decision in Solomon Beckford v. The Queen [1988] AC 130, the proper test where the issues were: whether the defendant used reasonable force in defending himself, is to ask whether he used such force as was reasonable in the circumstances as he honestly believe them to be. Where the defendant suggested an accidental death in the course of self-defence, that issue must be left to the jury as one of death by accident.

IN THE COURT OF APPEAL	1990 No. 403
	(Criminal)

THE QUEEN

AND

MAN WAI KEUNG

---------------------------

Coram: Hon. Fuad, V.-P., Power & Nazareth, JJ.A.

Date of Hearing: 3 December 1991

Date of Judgment: 20 December 1991

-----------------

JUDGMENT

-----------------

Power, J.A.:

1. This is the judgment of the Court.

2. After trial before Kaplan, J. and a jury, the applicant was convicted of murder. The particulars of the offence alleged that he, on the 14th day of December 1988, on the second floor, 27, Staunton Street, Central, Hong Kong, murdered MAN Sai who was his father.

3. The victim and his wife lived together with their son, the accused, at 27 Staunton Street, second floor. The victim was a decoration contractor. The applicant operated a garment factory in China and travelled back and forth to China from time to time on business.

4. At about 6 p.m. on 14th December 1988, a neighbour saw the victim return to the building carrying food. Shortly thereafter, the victim's wife returned home and, having been alarmed because a light, which should have been on, was not burning and because the iron grille was opened, went downstairs and was, after some time, accompanied back upstairs by the aforesaid neighbour. The neighbour entered the flat and found the deceased lying on the floor surrounded by blood. At about 7 p.m. ambulance attendants arrived and found that the deceased was dead.

5. The Forensic Pathologist Dr. Yu Hon-wai, who arrived at about 9 p.m., found that rigor mortis was already beginning to set in and that there was a large quantity of blood splattered in the area of the body. Dr. Yu performed the post mortem, during which he found there was a stab wound on the lower right front of the neck about 3 cm long and 9 cm deep. He also found on the neck of the deceased a ligature mark which indicated that the deceased had been strangled by a rope or something resembling a rope. He was satisfied from this mark that considerable force had been used as the hyoid bone and the thyroid cartilage had both been fractured. He was, nonetheless, satisfied that the cause of death was not strangulation but was the stab wound. In his opinion it was likely that the deceased was unconscious at the time when he was stabbed. He formed this opinion largely because there were no defensive wounds and no splashing of blood such as he would have expected had the deceased been conscious.

6. The applicant was arrested on the following day, the 15th of December, at about 10.30 p.m. after he was found swimming in the water off Lau Fau Shan by a Marine Police launch. This launch picked him up and, when questioned, he was alleged to have said, "I have killed my father. I am now trying to escape to China". He was taken to the Yuen Long Police Station and was eventually handed over to the Regional Crime Unit No.2 of Hong Kong Island. Upon being questioned, he told police officers that on the day of the death of his father it had been his intention to go back to China. He said that he had selected some cloth in Shamshuipo to take with him but found that he did not have enough cash to pay for it. He said that he decided to go to his parents home, where he had been living, to see if he could find any money or jewellery or gold which would enable him to pay for the cloth. He said that he took some gold ornaments, put them into a bag and was about to leave the flat when his father returned and that, upon seeing that the flat had been ransacked, his father scolded him and "forked his neck", and that he then "forked" his father's neck. He said that they fell to the floor and that he found a leather belt on the floor which he picked up and tied around his father's neck. He said he tightened it harder and harder but that his father was eventually able to pull it off and that he then, on the spur of a moment, picked up a knife which happened to be to hand and stabbed his father in the throat once. He said that he became very frightened and remained in the flat until the return of his mother. He then detailed his actions until, more than 24 hours later, he was picked up by the police launch.

7. The applicant challenged the admissibility of the statement alleging that it had been obtained by force and threats. However, it was admitted and was before the jury for their consideration.

8. In his evidence, the applicant gave an entirely different version of what he said had occurred. He said that the father having returned home and having seen that the house was in a mess, scolded, abused and slapped him and then grabbed his neck and that he felt very frightened. He said that he was trying to get away from his father and, while so doing, reached for a leather belt and tied his father up with it. He said that his father then freed himself from the belt and took up a fruit knife and rushed at him and that he grabbed hold of his father's hand which was holding the knife and there was a struggle and that "somehow" the knife stabbed his father's throat. He said he could not recall ever having got hold of the knife but that he thought the knife had pierced his father's throat while they were on the ground.

9. It is important when considering this appeal to isolate the issues raised by the applicant's cautioned statement and by his evidence.

10. In both, the issue of self-defence is raised. In the former, the indication was that the death occurred as the result of a deliberate act during self-defence. In the latter, the indication was that the death occurred accidentally while the applicant was defending himself.

11. A further important issue at the trial was the defence of diminished responsibility. The defence called a Dr. W.T. Yu who said that he was satisfied that the applicant was suffering from an abnormality of the mind induced by illness, namely a major depression, at the time of the incident which would have substantially impaired his mental responsibility for the act of killing. This was clear evidence of diminished responsibility.

12. Dr. Lo Chun-wai, who was called by the Crown, said that he was satisfied that the applicant was not suffering from any abnormality of the mind and described his condition as being no more than a transient episode of unhappiness. The conclusions of the two medical witnesses were clearly diametrically opposed.

13. The first ground of appeal argued by Mr. McCoy was in the following terms:

"1.

The learned Judge erred in law in directing the jury

'There is no particular magic in the words "grievous bodily harm" ... they mean what they say - some serious bodily harm'.

The correct words are 'really serious bodily harm'."

We do not consider it necessary to canvass this ground at any length. In the circumstances of this offence, the victim having died from a deep stab wound in the throat, we have no doubt that the judge's description "some serious bodily harm" was a perfectly adequate one. We observe only that as a general rule we think it desirable that the formula "really serious bodily harm" should be used when explaining to the jury the meaning of the words "grievous bodily harm".

"2.

The learned Judge erred in law in his direction to the jury as to self-defence. The direction is in objective terms whereas there are subjective elements in relation to both the perception of danger and the measurement of the reasonableness of the response.

At page 9E-G the learned judge corrected the situation in respect of the reasonableness of the response but not as to the perception of danger."

The passage to which objection was taken reads as follows:

            "Self-defence is lawful when it is necessary to use force to resist or defend yourself against an attack, or a threatened attack, and - this is very important - when the amount of force that you use is reasonable.

            I will read that to you just once more - self-defence is lawful when it is necessary to use force to resist or defend yourself against an attack, or a threatened attack, and when the amount of force that you use is reasonable.

            Now, members of the jury, what is reasonable force depends, as you must appreciate, upon all the facts of the particular case including the nature of the attack, whether or not a weapon was being used, and if it was, how and what kind of weapon it was and, of course, whether or not the attacker was on his own or with other people. Well, in this case you know it was just the father against the son. There was no one else involved.

            It is very important for you to appreciate that the person defending himself cannot be expected to weigh precisely the amount of defensive action which is necessary. If, therefore, you were to conclude that the defendant did no more than he instinctively thought was necessary, you should regard that as very strong evidence that the amount of force was reasonable and necessary, because it is for the prosecution to prove his guilt. It is for them to satisfy you so that you feel sure that the defendant was not acting in self-defence.

            If you conclude that he was or that he may have been acting in self-defence, then you will obviously acquit him.

            Failure to retreat, failure to run away from the incident when attacked and when it is possible and safe to do so, are not conclusive factors. It is simply a factor to be taken into account when deciding whether it was necessary for the defendant to use force, and whether the force used was reasonable."

The passage deals with the issue raised by the cautioned statement. Particular exception is taken by Mr. McCoy to the use of the words emphasized.

14. It was his submission that a direction in accordance with the ruling in R. v. Beckford [1988] AC 130 should have been given. He referred firstly to the earlier cases of Palmer v. R. [1971] AC 814 and R. v. Shannon (1980) 71 Cr.App.R.192. Lord Morris in Palmer v. R. said at p.831, when dealing with the issue of self-defence:

"In their Lordships' view the defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. It requires no set words by way of explanation. No formula need be employed in reference to it. Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. Of these a jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have to avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence. Of all these matters the good sense of a jury will be the arbiter. There are no prescribed words which must be employed in or adopted in a summing up. All that is needed is a clear exposition, in relation to the particular facts of the case, of the conception of necessary self-defence. If there has been no attack then clearly there will have been no need for defence. If there has been attack so that defence is reasonably necessary it will be recognized that a person defending himself cannot weight to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonably defensive action had been taken. A jury will be told that the defence of self-defence, where the evidence makes its raising possible, will only fail if the prosecution show beyond doubt that what the accused did was not by way of self-defence. But their Lordships consider, in agreement with the approach in the De Freitas case (1960) 2 W.L.R. 523, that if the prosecution have shown that what was done was not done in self-defence then that issue is eliminated from the case. If the jury consider that an accused acted in self-defence or if the jury are in doubt as to this then they will acquit. The defence of self-defence either succeeds so as to result in an acquittal or it is disproved in which case as a defence it is rejected." (Our emphasis.)

The summing-up of Kaplan J. appears to have relied upon the passage emphasized but to have omitted the world "honestly". It seems clear that Lord Morris was holding that the jury should be directed that if the person attacked honestly and instinctively did what he thought was necessary that would be most potent evidence that his actions were reasonable. The assessment of what was a reasonable response was an objective one but when making that assessment the jury was required to regard an honest and instinctive reaction as potent evidence. The focus is upon the response of the person defending himself.

15. Palmer v. R. was approved and followed in R. v. Shannon (1980) 71 Cr.App.R. 192 in which Ormrod L.J., at p.197, said:

"But on the issue of self-defence he (the trial judge), effectively excluded the state of the accused's mind. In other words by leaving that issue to the jury on the bald basis of 'Did the appellant use more force than was necessary in the circumstances?', the learned judge may have precluded the jury from considering the real issue, which, to paraphrase Lord Morris in Palmer v. R. was 'Was the stabbing within the conception of necessary self-defence judged by the standards of common sense, bearing in mind the position of the appellant at the moment of the stabbing, or was it a case of angry retaliation or pure aggression on his part.' "

16. Ormrod L.J., paraphrasing Lord Morris, was satisfied that "the real issue" was whether the response was "within the conception of necessary self-defence judged by the standards of common sense", i.e. was reasonable, "bearing in mind the position of" the person being attacked. The focus is again upon an assessment of the response, but when giving consideration to the reasonableness of the response, the position of the defendant, i.e. the danger in which he found himself, has to be borne in mind.

17. In the former case Lord Morris said that an honest and instinctive reaction was "potent evidence" when assessing the reasonableness of the response while in the latter, Ormrod L.J. said that the position of the appellant had to be "borne in mind" in that assessment. The focus in both cases was upon the response. The assessment thereof, in each, was objective but each indicated evidentiary matters which contained subjective elements to which weight should be given.

18. The decision of the Privy Council in Solomon Beckford v. The Queen [1988] AC 130 moved the focus from the assessment of the response to the assessment of the danger as seen by the person being attacked and squarely introduced a substantial subjective element into that assessment.

19. Lord Griffiths delivering the judgment of the Board referred to R. v. Morgan [1976] A.C. 182 which held that in a rape case a defence of belief that the woman was consenting even if not based on reasonable grounds would succeed if the prosecution failed to prove that it was not genuine.

20. He held, at p.144, that:

"If then a genuine belief, albeit without reasonable grounds, is a defence to rape because it negatives the necessary intention, so also must a genuine belief in facts which if true would justify self-defence be a defence to a crime of personal violence because the belief negatives the intent to act unlawfully." (Our emphasis)

He went on to approve the following passage in the judgment of Lord Lane C.J. in Reg. v. Williams (Gladstone) (1984) 78 Cr. App. R. 276 as correctly stating the law of self-defence:

"The reasonableness or unreasonableness of the defendant's belief is material to the question of whether the belief was held by the defendant at all. If the belief was in fact held, its unreasonableness, so far as guilt or innocence is concerned, is neither here nor there. It is irrelevant. Were it otherwise, the defendant would be convicted because he was negligent in failing to recognize that the victim was not consenting or that a crime was not being committed and so on. In other words the jury should be directed first of all that the prosecution have the burden or duty of proving the unlawfulness of the defendant's actions; secondly, if the defendant may have been labouring under a mistake as to the facts, he must be judged according to his mistaken view of the facts; thirdly, that is so whether the mistake was, on an objective view, a reasonable mistake or not.

In a case of self-defence, where self-defence or the prevention of crime is concerned, if the jury came to the conclusion that the defendant believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime, then the prosecution have not proved their case. If however the defendant's alleged belief was mistaken and if the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected. Even if the jury come to the conclusion that the mistake was an unreasonable one, if the defendant may genuinely have been labouring under it, he is entitled to rely upon it." (Our emphasis.)

21. The test of the reasonableness of the response remains objective but the objective assessment must be made in the light of the seriousness of the attack as the defendant honestly believes it to be and it is not material that his belief was a mistaken one as long as it was honestly held.

22. The focus is now upon the honesty of the belief of a defendant as to the seriousness of the attack and, in the light of that belief, the reasonableness of the response must be judged. The critical factor is whether the person being attacked honestly, perhaps "genuinely" is a better word, believed the attack to be a serious one against which he had to defend himself. If he did, then the reasonableness of his response must be judged in accordance with that belief. If the jury was satisfied that he did not honestly believe the attack to be one requiring self-defence then a plea of self-defence would fail. If they were satisfied that he honestly believed the attack to be one requiring self-defence or if they considered that he might honestly have had that belief, then self-defence will avail him if the force he uses is reasonable given that belief. The position is succinctly put by Lord Griffiths in Beckford at p.620 when he states:

".....the test to be applied for self-defence is that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another."

While such a test can be simply formulated, situations in real life are, not infrequently, so complex and confused that application of the test is fraught with difficulty. It is common sense that in practice the belief as to the seriousness of the situation and the response thereto are often so interlinked that the latter may well be a factor of real weight in the ascertainment of the former. The direction in the present case that instinctive reaction was strong evidence that the amount of force used was reasonable was, in the light of the decision in Beckford, wrong. It failed to deal with the subjective element. The jury should have been told that, if they accepted or thought it might be possible that the defendant genuinely believed that he was under attack, they must judge the reasonableness of his reaction to that attack in the light of that belief. There was for these reasons a misdirection on the issue of self-defence.

"4.

The jury's verdict, in rejecting the defence of diminished responsibility, was unreasonable or perverse in all the circumstances."

23. We fully appreciate the concern of counsel with regard to this ground. It was apparent that the judge was not greatly impressed by the doctor who gave evidence for the Crown and was much more impressed by the doctor who gave evidence for the defence stating that he was satisfied that the defendant was suffering from diminished responsibility at the time he committed the crime. However, this was a matter of fact for the decision of the jury. The trial judge was at pains to outline the evidence of both experts and left the matter squarely for the jury's decision. In such circumstances we do not consider that we could properly regard their veidict as being either unreasonable or perverse.

"5.

The learned Judge erred in focusing the jury's attention on the 'head-on clash' between the medical experts (Page 50 D-J), and thus discouraged the jury from considering the non-medical evidence which affected the issue."

24. There was, we are satisfied, a "head-on clash" between the conclusions of the medical experts and the judge was quite entitled to refer to it in those terms. It is, further, far from correct to say that he focussed the jury's attention only upon that. He made it plain to them before he commenced to canvass the medical evidence that it must be looked at in the light of all of the evidence in the trial by saying:

"Now, although the medical evidence is important when you are considering this element, you must consider not only the medical evidence but the evidence as to the whole facts and the circumstances of the case, including the nature of the killing, the conduct of the accused person before, at the time of and after it and any history of mental abnormality. You must approach the question in a broad commonsense way."

This was an eminently correct and sensible direction and we have no doubt that the jury had their minds properly directed to the way in which they should approach the medical evidence.

"6.

The learned Judge misdirected the jury that they should accept either of the two versions given by the Applicant. The jury were not faced with such a choice."

The passage to which exception is taken reads as follows:

"Of course, you are going to have to make up your mind which of those two very different versions you accept."

It is true that the jury did not have to make up their minds which of the two versions they accepted. They had only to decide whether they were prepared to give sufficient credence to one or to the other to occasion them a reasonable doubt as to whether either self-defence or accident had been disproved. We are, however, in the light of the clear and repeated directions as to the onus that lay on the Crown in no doubt that the jury must have understood that direction to mean that they should look at the two versions to see whether they gave to either of them sufficient credence to raise a doubt.

"7.

The learned Judge failed to direct the jury as to the proper use they could make of any lies they may have concluded had been told."

25. Mr. McCoy submitted that, as the applicant had in his statement given a version which was in material conflict with the version which he gave in his evidence, the jury would, if they gave credence to one story as against the other, have concluded that the applicant had told lies, or indeed, would, if they rejected both versions, have concluded that the applicant had lied in both. It was his submission that this was a case which called for a careful direction of the kind referred to in Broadhurst v. The Queen [1964] A.C. 441 as to the use which the jury could make of lies. Mr. McCoy conceded that such a direction is not necessary in every case but submitted that this was a classic example of the kind of case which requires such a direction. We are satisfied that it was not enough, given the facts of this particular case, for the judge simply to direct the jury, as he carefully did on more than one occasion, as to the onus which lay upon the Crown and to leave to their common sense the use which they would make of any lies they considered had been told. Given that the applicant had put forward conflicting versions neither of which the jury may have believed, this matter required a specific direction that lies might be told in circumstances such as this out of panic and or because of fear not because of a consciousness of guilt.

"8.

The learned Judge wrongly took away from the jury the defence of accident."

This ground arises out of an observation by the trial judge at judge at the commencement of his summing-up when he said:

"No question of accident arises, and the killing itself, as you know from the admitted facts, is admitted. So you have to concentrate all the way through on the question of intention."

This observation appears to overlook the issue of accidental death in the course of self defence raised by the applicant in his evidence. Mr. McCoy submits that by the use of these words, the judge clearly took away from the jury any consideration of an accident.

26. Mr. Cross, Q.C., who appears with Mr. Cheung for the Crown, submits that the trial judge did not by these words remove such an issue. It is his submission, as we apprehend it, that what the judge was saying here was that there was no suggestion that the death was an act of God as the fact that a killing took place was admitted. He submitted that the trial judge had clearly left accident to the jury as he had outlined fully the evidence of the applicant during his summing-up in which he clearly raised accident. Mr. Cross also relied upon the passage in the summing up where the judge said:

"So, what all this leads to is this. First, you must decide what happened on that fateful evening. Decide what version of facts you accept, and having done that, then apply the legal principles upon which I have already directed you."

He suggests that this was a clear direction to the jury to consider all of the evidence and that, as the evidence coming from the applicant was that the death was accidental, he left that matter for the consideration of the jury. We are unpersuaded by this argument. Despite the evidence of the applicant that the death occurred accidentally while he was defending himself, the jury had a clear direction that "no question of accident arose". Accident in the context of self defence was an issue and the jury should have been so directed.

27. It was Mr. Cross's further and alternative submission that, though accident was raised, it was raised in such a tenuous way that it was right for the judge to indicate to the jury that they were not called upon to consider it. We cannot agree. There was nothing tenuous about the evidence of the applicant nor was there about the reliance placed thereon by the late Mr. Francis Eddis Q.C. in his closing address for the defence.

28. Before leaving this matter, we feel it appropriate to remark that, while judges do sometimes, as was done in the present case, hand to juries written summaries of their directions on the law in an endeavour to assist them, in our view this practice should be sparingly used. While it is for the trial judge in each case to make his own determination, we caution that brief summaries can sometimes mislead rather than assist.

29. For the reasons set out above, the application for leave to appeal against conviction is granted. The hearing of the application is treated as the hearing of the appeal and the appeal is allowed.

[Re-trial ordered.]

Representation:

Mr. I.G. Cross Q.C. and Mr. W.S. Cheung (Crown Prosecutors) for the Respondent.

Mr. G.J.X. McCoy (Messrs. So & Co. ) for the Applicant.

THE QUEEN v. MAN WAI KEUNG

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