Press Summary (English)

Press Summary (Chinese)

FACC No. 1 of 2024

[2024] HKCFA 14

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2024 (CRIMINAL)

(ON APPEAL FROM CACC NO. 153 OF 2021)

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J U D G M E N T

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Chief Justice Cheung and Mr Justice Fok PJ:

A. Introduction

1. This appeal raises the following important question of law:

“Does section 3(2) of the Homicide Ordinance ( Cap.339 ) unjustifiably derogate from the [appellant]’s right of presumption of innocence under Article 87(2) of the Basic Law and Article 11(1) of the Hong Kong Bill of Rights, and if so, should section 3(2) be read down as imposing only an evidential burden?”

2. Although framed specifically in terms of the statutory provision (see below) concerning criminal liability for the killing of another by a person suffering from a relevant abnormality of mind, it raises the more general question of how courts should approach the question of whether the constitutionally protected presumption of innocence is engaged in relation to provisions which place a burden of proof on a defendant. It also provides the opportunity, as will be seen, for this Court to consider the proportionality of the particular reverse onus provision in the present case.

3. The background facts of the case and the proceedings below can be shortly stated.

4. The appellant was convicted of two counts of murder [1] and two counts of shooting with intent to cause grievous bodily harm. [2] The charges arose from an incident after the appellant attended a family lunch arranged to discuss the division of her late grandmother’s estate on 26 June 2018. After the meal, the appellant invited various family members to go for a walk in a nearby park to continue their discussion. During that walk, without any warning, the appellant withdrew a pistol and started shooting at her family members. She killed two of them and wounded two others. The appellant fled into a nearby shopping centre where she was apprehended, disarmed and taken into custody.

5. At her trial before M Poon JA (sitting as an additional judge of the Court of First Instance) and a jury, the appellant offered to plead guilty to manslaughter by reason of diminished responsibility in respect of the two counts of murder. The prosecution did not accept that offer and the trial proceeded accordingly with the prosecution and the defence each adducing evidence from respective psychiatric experts in respect of the appellant’s mental condition. On 15 July 2021, the appellant was found guilty of all four counts and sentenced to life imprisonment on the two counts of murder and to an aggregate of 18 years’ imprisonment on the two shooting counts.

6. The appellant applied for leave to appeal against conviction. Two grounds of appeal against conviction were advanced, of