HKSAR v. LI CHEUNG CHOI

CACC 210/2018 [2024] HKCA 290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL CRIMINAL APPEAL NO 210 OF 2018 (ON APPEAL FROM HCCC NO 348 OF 2016) ___

HKSAR Respondent v Li Cheung Choi (李長再) Applicant ___ Before: Hon Macrae VP, Pang and Zervos JJA in Court Dates of Written Submissions: 5 July 2023 (Applicant) 19 July 2023 (Respondent) Date of Hearing: 20 March 2024 Date of Judgment: 22 March 2024 ____

J U D G M E N T ____ Hon Zervos JA (giving the Judgment of the Court): On 20 June 2023, the applicant filed a Notice of Motion applying to this Court under s. 32 of the Hong Kong Court of Final Appeal Ordinance, (Cap 484), for a certificate out of time to the Court of Final Appeal on the basis that our decision on 7 September 2021, dismissing his appeal against conviction for murder, involved two points of law of great and general importance encompassed in the following questions: Question 1: “Is a patient’s description to a medical practitioner as to his state of mind and the circumstances in respect of an event at some time in the distant past always hearsay evidence which can never be used as evidence of its truth?” Question 2: “As far as Section 5(3) of the Homicide Ordinance, Cap. 339 is concerned, how should ‘the settled intention of dying in pursuance of the pact’ be interpreted? Does it include the intention of the deceased at the time of the killing?” This application is significantly out of time. On 11 July 2018, following a trial before a judge and jury, the applicant was convicted of the offence of murder. It was alleged that he strangled his wife to death with a belt in the back seat of a taxi as they were travelling through a tunnel in the New Territories. On 30 July 2018, the applicant appealed his conviction, which this Court dismissed on 7 September

2021. An application for leave to appeal to the Court of Final Appeal is required to be made within 28 days from the date of the Court of Appeal’s decision. It is provided by Practice Direction 2.2 that an application for certification of a point of law to the Court of Appeal be made immediately after the Court of Appeal’s judgment, failing which may make it difficult or impossible for parties to comply with the time limit for an application for leave to appeal to the Court of Final Appeal. It is further provided by Practice Direction 4.3 that an application for a certificate to the Court of Appeal that its decision involves a point of law of great and general importance should be made within 7 days of the handing down of the judgment. This meant that in the present case, the deadline for making an application for a certificate to appeal on a point of law to the Court of Final Appeal was 14 September 2021. Instead, the application was filed late by 1 year and 9 months on 20 June 2023. As a general principle, the longer the delay, the greater the justification for the application to be granted. There have been significant periods of delay in these proceedings due to a variety of factors. We are naturally concerned about any period of delay that may have a bearing on the case, particularly if there needs to be a retrial. As stated by this Court in HKSAR v Shoki Fatuma Ramadhani ,

the requirements that an application to the Court of Appeal for a certificate be made within the prescribed period serves the legitimate purpose of ensuring that it is possible to constitute the same panel as made the decision, that the relevant files are available to the Court and that the Court has a working memory of the proceedings in respect of which the application is made. All of those purposes would be thwarted by a delay between the handing down of the decision and the filing of the application. In an affirmation filed with the Court on 20 June 2023, the applicant stated that he applied for legal aid on 15 September 2021 to appeal his case to the Court of Final Appeal. He was granted an Appeal Aid Certificate on 20 October 2021 and assigned his previous counsel, Mr Andrew Bruce, SC to represent him. There seems to have been a serious breakdown in communications between the instructing solicitor and leading counsel due to a variety of reasons, but mainly because of changes to the professional practices of the legal representatives and also because of the relocation and other commitments of leading counsel as well as the impact of the Covid pandemic. Both legal representatives accept full responsibility for the inordinate delay in rendering a legal advice to initiate these proceedings. As a consequence, on 23 May 2023 Mr Phil Chau, SC was assigned to replace leading

counsel, and on 12 June 2023 Mr Si Ming Yee Simon was assigned to replace the instructing solicitor. The delay has also caused difficulties for the Court. During this period, one of the panel members has retired and this necessitated a new panel to deal with the application for a certificate. As a result, it was considered that in the circumstances the application should be dealt with by way of a hearing rather than on the papers. This caused further delay in arranging a suitable hearing day to meet the convenience of the parties. The unfortunate series of events and delays has required us to carefully address the justice of the situation. Question 1 arises from our remarks in paragraphs 78 to 133, particularly 89 and 132, of the judgment and the dichotomy between a strict and flexible approach to hearsay evidence in respect of the medical expert opinion on behalf of an accused who has not testified. In the present case, the applicant relied on medical expert opinion to support the partial defence of diminished responsibility to a murder charge. He did not testify so his statements to the medical practitioner were not repeated or tested in court. The point of law concerns the general subject of hearsay evidence and would necessarily have broad application to all cases in which an accused seeks to rely on medical expert opinion based on statements he or she has made to the

medical practitioner where the accused does not testify. We are satisfied that Question 1 is involved in the decision and raises a point of law of great and general importance. In the course of oral submissions, Question 1 was reframed as follows. “Are the statements of an accused to a medical practitioner regarding his or her background and state of mind at the time of the offence, and the circumstances of a relevant event or events, hearsay evidence and inadmissible when he or she does not testify at trial and, if so does this also render inadmissible the expert opinion of the medical practitioner?” In normal circumstances, it may be considered that the application should be refused because of the inordinate lapse of time, but in the unusual circumstances of this case, we grant a certificate on the point of law as reframed in Question 1. Question 2 concerns the wording of s.5(3) of the defence of a suicide pact. Section 5(1) provides that a person acting in pursuance of a suicide pact between himself and another to kill the other or be a party to the other being killed by someone else shall be guilty of manslaughter, not murder. Section 5(3) defines a suicide pact to be “a common agreement between two or more persons having for its object the death of all of them, whether or not each is to take his own life, but nothing done by a person who enters into a suicide pact shall be

treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact.” The essence of a suicide pact is the common agreement between two or more persons, with the objective being the death of all of them. The question raised by the applicant concerns the wording of the phrase “the settled intention of dying in pursuance of the pact”. The decision of this Court was that a suicide pact was not part of the defence case, nor was there a realistic evidential basis for it to have been left to the jury. The meaning of the phrase in question did not arise in our decision, and we do not see that there is a point of law of great and general importance in relation to the phrase when considered in the context of the full wording of the definition of a suicide pact. We are not satisfied that Question 2 is involved in the decision, nor that it is a point of great and general importance. Accordingly, we refuse to grant a certificate for this question. (Andrew Macrae) (Derek Pang) (Kevin Zervos) Vice President Justice of Appeal Justice of Appeal Mr Ned Lai, DDPP (Ag), and Ms Karen Ng, SPP, of Department of Justice, for the respondent Mr Phil Chau, SC and Mr Tien Kei Rui, instructed by Simon Si & Co, Solicitors, assigned by Director of Legal Aid, for the applicant