FAMC Nos 1 and 2 of 2004
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 1 and 2 OF 2004 (CRIMINAL)
(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 92 OF 2002)
Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ
Date of Hearing: 5 March 2004
Date of Determination: 5 March 2004
D E T E R M I N A T I O N
Mr Justice Bokhary PJ:
1. We will deal with sentence first. Sometimes a defendant who faces a murder charge offers to plead guilty to manslaughter. If hisoffer is rejected by the prosecution, he has a choice. He can fight the case on the basis that he is not guilty of murder but guiltyof manslaughter. Or he can fight the case on the basis that he is not guilty of any homicide. There is a considerable differencebetween these two courses. If the defendant is convicted of manslaughter after pursuing the first course, the full one-third discountof sentence for a guilty plea is normally given. But if he is convicted of manslaughter after pursuing the second course, somethingless than a one-third discount is normal. Is it reasonably arguable that there is a departure from accepted norms in the extent towhich the discounts given by Gall J fall short of one-third? In all the circumstances, we think that that is not reasonably arguable.Accordingly we refuse leave to appeal to the Court of Final Appeal against sentence.
2. As to conviction, it is reasonably arguable that the dissenting view of Stock JA rather than the majority view represents acceptednorms. Accordingly we grant each applicant leave to appeal to the Court of Final Appeal against conviction on the substantial andgrave injustice ground. No question of law has been formulated for certification. But it might be that there is a question or arequestions as to the law of joint enterprise or secondary criminal liability for resolution in the appeal to the Court of Final Appeal.If any counsel detects any such question or questions, he should deal with the same fully in his printed case. And the relevant authoritiesand academic writings should be drawn to the Court of Final Appeal’s attention.
Mr Gerard McCoy SC (instructed by Messrs Knight & Ho and assigned by the Legal Aid Department) for the 1st applicant
Mr Lawrence Lok SC and Mr Edwin Choy (instructed by Messrs S.Y. Chu & Co. and assigned by the Legal Aid Department) for the 2ndto the 7th applicants
Mr Alain Sham and Ms Anthea Pang (of the Department of Justice) for the respondent