Case Detail

HCCC000427/1998

HCCC No. 427 of 1998

HEADNOTE

The definition of the mental element of murder as an intention to kill or cause really serious injury is consistent with the Basic Law and the Bill of Rights.

Decisions of the Supreme Court of Canada in Vaillancourt v R (1988) 47 DLR (4th) 399 and R v Martineau (1990) 58 CCC 353 distinguished.

HCCC No. 427 of 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 427 OF 1998

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BETWEEN
	HKSAR

	AND

	MOK TSAN-PING	1st Accused
	SEE CHEUNG-SHUN	2nd Accused
	CHENG PO	3rd Accused

____________

Coram: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 26 July 1999

Date of Delivery of Ruling: 29 July 1999

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R U L I N G

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1. These three accused are jointly charged with one count of murder. The prosecution's case against them is that they, acting in pursuance of a joint enterprise, murdered a man by stabbing him to death.

2. It is submitted on their behalf that the Bill of Rights (which came into force on 8th June 1991) and/or the Basic Law (which came into force on 1st July 1997) have changed the common law so that the mental element for murder is no longer an intention either to kill or to cause grievous bodily harm i.e. really serious injury, but has become instead an intention either to kill or to endanger life. In other words, it is submitted that the alternative to an intention to kill has been raised from an intention to cause really serious injury to an intention to endanger life. I am asked by the defence to so hold and to direct the jury accordingly when summing-up to them.

3. If the defence submission is right, then it follows that not only has the law of murder been changed but so has the law of manslaughter: either there has been created a new category of manslaughter for which the mental element is an intention to cause really serious injury, or else the mental element for the category known as "unlawful act" manslaughter has been expanded to include that intention.

4. Defence counsel rely on two decisions of the Supreme Court of Canada, namely Vaillancourt v R (1988) 47 DLR (4th) 399 and R v Martineau (1990) 58 CCC 353.

5. The facts in Vaillancourt are summarised in the headnote (at p. 400) which reads:

"The accused was convicted of murder as a result of the death of a person during the commission of an armed robbery. The victim was actually shot by the accused's accomplice. The accused testified that he was unaware that the gun in the possession of his accomplice was loaded. The accused himself was in possession only of a knife. The accused's liability for murder depended upon the combined operation of ss. 21(2) and 213(d) of the Criminal Code, Section 213(d) provides in part that "culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit ... robbery ... whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if ... (d) he uses a weapon or has it upon his person during or at the time he commits or attempts to commit the offence ... and the death ensues as a consequence". The accused was convicted of second degree murder and his appeal to the Quebec Court of Appeal was dismissed. On further appeal by the accused to the Supreme Court of Canada it was argued that, inter alia, s. 213(d) of the Criminal Code offended ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms."

6.Section 21(2) of the Canadian Criminal Code is not given in the report of Vaillancourt, but is given in the report of Martineau (at pp. 366-367). It reads:

"Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence."

7.Section 7 of the Canadian Charter of Rights and Freedom reads:

"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

Its effect was stated in the following terms by Lamer J in Vaillancourt (at p. 413):

"Under s. 7, if a conviction, given either the stigma attached to the offence or the available penalties, will result in a deprivation of the life, liberty or security of the person of the accused, then Parliament must respect the principles of fundamental justice."

8. As for s. 11(d) of the Charter, it is quoted at p. 383 of the report of Martineau. It provides that:

"Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal."

9. Two questions were raised before the Supreme Court of Canada in Vaillancourt. These were (as stated by Lamer J at p. 407):

"1. Is s. 213(d) of the Criminal Code inconsistent with the provisions of either s. 7 or s. 11(d) of the Canadian Charter of Rights and Freedoms, and, therefore, of no force or effect?
2. If not, is the combination of s. 21 and s. 213(d) of the Criminal Code inconsistent with the provisions of either s. 7 or s. 11(d) of the Canadian Charter of Rights and Freedoms and is s. 21 of the Criminal Code therefore of no force or effect in the case of a charge under s. 213(d) of the Criminal Code?"

10. On the first question, the Supreme Court of Canada held (by a majority) that s. 213(d) of the Code violated both s. 7 and s. 11(d) of the Charter so that s. 213(d) of the Code was of no force or effect: see pp. 420-421. The court did not consider it necessary or advisable to answer the second question: see pp. 408 and 420. On the basis of their answer to the first question, the court allowed the appeal and ordered a new trial.

11. The facts in Martineau are summarised as follows in the headnote (at p. 353):

"The accused was convicted of two counts of second degree murder. The evidence indicated that the accused, who was 15 years of age at the time, with a companion went to the home of the deceased, apparently to commit either break and enter or robbery. In the course of the robbery the two deceased were bound and then shot with a rifle which had been carried by the accused's companion. It was the theory of the Crown that the accused was a party to the murders. The jury were instructed that the accused could be convicted as a result of the combined operation of ss. 21 and 313(a) or (d) of the Criminal Code. Following the trial s. 213(d) of the Criminal Code was declared unconstitutional by the Supreme Court of Canada. On the accused's appeal to the Alberta Court of Appeal the court held that as well s. 213(a) was unconstitutional. Accordingly the accused's appeal was allowed and a new trial ordered.

On appeal by the Crown to the Supreme Court of Canada, held, L'Heureux-Dube J dissenting, the appeal should be dismissed."

12.Section 213(a) of the Code is set out at p. 358 of the report. It reads:

"Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit high treason or treason or an offence mentioned in section 52 (sabotage), 76 (piratical acts), 76.1 (hijacking an aircraft), 132 or subsection 133(1) or sections 134 to 136 (escape or rescue from prison or lawful custody), section 246 (assaulting a police officer), section 246.1 (sexual assault), 246.2 (sexual assault with a weapon, threats to a third party or causing bodily harm), 246.3 (aggravated sexual assault), 247 (kidnapping and forcible confinement), 302 (robbery), 306 (breaking and entering) or 389 or 390 (arson), whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if

(a) he means to cause bodily harm for the purpose of

(i) facilitating the commission of the offence, or
(ii) facilitating his flight after committing or attempting to commit the offence,

and the death ensues from the bodily harm."

13. The constitutional questions before the Supreme Court of Canada this time were (as one sees from p. 358):

"1. Does s. 213(a) of the Criminal Code infringe or deny the rights or freedoms guaranteed by s. 7 and/or s. 11(d) of the Canadian Charter of Rights and Freedoms?
2. If the answer to question 1 is affirmative, is s. 213(a) justified by s. 1 of the Canadian Charter of Rights and Freedoms, and therefore not inconsistent with the Constitution Act, 1982?"

14. By a majority the court held (at p. 358): that s. 213(a) of the Code infringed both s. 7 and s. 11(d) of the Charter; that s. 213(a) of the Code was not justified by s. 1 of the Charter; and that s. 213(a) of the Code was therefore inconsistent with the Constitution Act 1982. The prosecution's appeal was therefore dismissed.

15. The Hong Kong provisions on which defence counsel place reliance in the present case are those in the Bill of Rights and the Basic Law which are equivalent to s. 7 and s. 11(d) of the Canadian Charter. In the Bill of Rights these are article 5 (which provides that "Everyone has the right to liberty and security of person"); article 10 (which guarantees a fair trial); and article 11(1) (which provides that "Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law").

16. In the Basic Law these are article 28 (which provides that "The freedom of the person of Hong Kong residents shall be inviolable") and article 87 (which provides that accused persons "shall be presumed innocent until convicted").

17. Clearly there exist in Hong Kong guarantees of the liberty and security of the person and of the presumption of innocence similar to those on which the Supreme Court of Canada based its decisions in Vaillancourt and Martineau. So defence counsel's reliance on those two cases does not fail for want of such guarantees.

18. But there is, in my judgment, a reason why their reliance on those two cases does fail. What those two cases did was to strike downconstructive murder i.e. murder which did not involve intention to kill or cause really serious injury but was committed, even without any such intention, where death is caused in the course of committing a violent felony or while escaping after having committed such a felony. Constructive murder has long since ceased to be part of the law of Hong Kong.

19. The remaining question is whether, quite apart from Vaillancourt and Martineau, there is some other basis on which the argument put forward by defence counsel can succeed. Put another way, does an intention to cause really serious injury being sufficient for murder offend against our principle of the liberty and security of the person or our principle of the presumption of innocence?

20. As far as the presumption of innocence is concerned, I do not think that the law of murder as presently understood involves cutting down the presumption of innocence. It does not take a lesser intent or degree of participation to presume a greater intent or degree of participation. What it does is to say that the lesser intent or degree of participation is enough for murder.

21. As far as the liberty and security of the person is concerned, it comes down to this: is the liberty and security of the person taken away by a rule that an accused is liable to a mandatory life sentence for unlawfully killing someone even though he did not intend death provided that he intended really serious injury? In my judgment, the answer is that such a rule does not take away the liberty and security of the person.

22. Defence counsel seek for reinforce their argument by reference to the position of secondary parties. They say that it is particularly objectionable that a secondary party to a joint enterprise may be convicted of murder on the basis of foreseeability of death or serious bodily harm even though nothing less than an intention to kill or to cause serious bodily harm would suffice for the conviction of the principal offender. But it is to be remembered that (as stated in "1999 Archbold" at p. 1566, para. 19-30):

"Mere foresight is not enough: the secondary party, in order to be guilty, must have foreseen the relevant act of the principal as a possible incident of the common unlawful enterprise and must, with such foresight, have participated in the enterprise: Hui Chi-ming v. R [1992] 1 AC 34, PC."

23. Lord Steyn has said that "a precise and sensible solution" would be "that killing should be classified as murder if there is an intention to kill or an intention to cause really serious bodily harm coupled with awareness of the risk of death": see R v. Powell [1999] 1AC 1 at p. 15 F-H. Lord Mustill supported that: see p. 12 B-D. So those who advocate reform include eminent judges; and the appropriate reform may be as simple as the one suggested by Lord Steyn. But questions of this kind are the sort on which people who value the liberty and security of the person, the presumption of innocence, the right to a fair trial etc. can reasonably hold different views all of which the Basic Law and the Bill of Rights would accommodate. In my judgment, it is a matter for the Legislature.

24. It is not my duty, sitting here as a judge, to say whether, or how, the definition of the mental element of murder as an intention either to kill or cause really serious injury can be improved by law reform. The question which I have to decide is simply whether that definition is incompatible with the Bill of Rights (which came into force on 8th June 1991) and/or the Basic Law (which came into force on 1st June 1997). In my judgment, it is not incompatible with either. I therefore reject the argument of defence counsel that the Bill of Rights and/or the Basic Law have changed the mental element of murder as they contend.

25. I note that my conclusion on this matter is the same as that of Mr Justice Gall in HKSAR v. Pun Ganga Chandra [1999] 2 HKC 579 and of Mr Justice Nguyen in HKSAR v. Chan Chui Mei, HCCC 378/98, 11th June 1999.

26. When summing-up to the jury, I will direct them that the mental element of murder is an intention to kill or cause really serious injury.

	(V. Bokhary)
	Judge of the Court of First Instance, High Court

Representation:

Mr Ian Lloyd (instructed by the Department of Justice) for the prosecution.

Mr Robert Forrest (instructed by Messrs Ivan Tang & Co) for the 1st Accused.

Mr William Stirling (instructed by the Legal Aid Department) for the 2nd Accused.

Mr John McNamara (instructed by Messrs Cheung, Chan & Chun) for the 3rd Accused.

Remarks:

Appeal by D1, D2 and D3 to the Court of Appeal. D1 and D2: appeal allowed to the extent that a re-trial order for D1 and D2 on a fresh indictment for manslaughter. D3: appeal dismissed. Please refer to the appeal judgment CACC000424/1999.

HKSAR v. MOK TSAN PING AND OTHERS

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