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HKSAR v. Hui Chi Wai and others

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Court/Judicial body: Court of Appeal, the High Court of the Hong Kong Special Administrative Region

Citation:  [2001] HKCA 219; [2001] 3 HKC 531; CACC78/1999 (20 July 2001)
Date: 20 July 2001
Instrument(s) cited: Section 2, 17 and 19 of the Offences Against the Person Ordinance, Cap. 212 Section 65(A), 67(B), 80 and 83(1) of the Criminal Procedure Ordinance, Cap. 221

Case summary

Background: A group of minors attacked and tortured another child. The attack lasted for hours and ultimately led to the death of the victim. All thirteen defendants were charged with murder. Six of them appealed against their convictions and sentences. Four of the appellants were sentenced to life imprisonment but no determination was made as to the minimum term to be served. Regarding the appeal of the convictions, all six appellants argued that their age had not been properly taken into account. Regarding the appeal of the sentences, the four appellants sentenced to life argued that the trial judge was under an obligation to set such a minimum term under national law.

Issue and resolution:  Juvenile justice. The Court of Appeal considered whether the ages of the defendants can be considered a defence against criminal charges or a mitigating condition that warrants a more lenient sentence. The Court concluded that the ages of the defendants could not not be considered a defence against murder charges, since young children could also form the intent to kill. Life sentences. It was held that the trial judge should have set a minimum term to be served as part of the life sentence so the matter was remitted to the trial judge so he can do so.

Court reasoning: The trial court had decided that youth in itself was not a defence against murder charges because young children are capable of forming the intent necessary for murder by referring to a UK case where two boys aged 12 and 10 years were convicted of the murder of a younger child. Defendant No. 8 in the present case, who was 14 years old, admitted in his testimony that he joined in beating the victim, but emphasized that he was merely playing the roles in the comic books which he used to read, and having fun without any intention to cause the victim’s death. Based upon this testimony, counsel for Defendant No. 8 argued that he should not be convicted of murder because he lacked the intent to kill. The trial court did not take into account the testimony regarding the comic books and the age of offenders. The Court of Appeal affirmed the conviction of Defendant No. 8 on the ground that it was clear that the defendant had taken part in the beating and hit the victim at various stages with weapon, therefore he should have been fully aware that the victim was seriously injured. Defendant No. 6 and several others had tried to revive the victim when they realised that the victim was obviously near death. Counsel argued that such fact should at least show that the defendants had no intention to cause the death of the victim, but the Court of Appeal did not accept that argument and held that such fact could merely show the panicked mental state of the defendants, and therefore, could not establish the absence of the Defendants’ intention to cause the death of the victim. Regarding sentencing, the Court was astonished by the omission of any of the defence counsels or the prosecutor to remind the judge not to set a minimum term to be served as part of the life sentences. The judge was required to do so by virtue of section 67B of the Criminal Procedure Ordinance. The case was remitted for determination of the minimum term by the trial judge, who is better placed to make that determination.

Link to full judgement: