HKSAR v. Khan Changaz

CACC 117/2017

[2018] HKCA 320

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 117 OF 2017

(ON APPEAL FROM HCCC NO 412 OF 2015)

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J U D G M E N T

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Hon Pang JA (giving the Judgment of the Court) :

1.By a judgment handed down on 12 April 2018, we dismissed the applicant’s application for leave to appeal against his conviction for a single count of trafficking in dangerous drugs for which he was sentenced to 8 years and 9 months’ imprisonment.

2.Pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, the applicant now applies to us for an order certifying that a point of law of great and general importance is involved in our judgment.

3.The respondent opposes the said application but neither party opposes to us disposing of the matter on paper.

4.The point of law proposed to be certified is as follows :

“ Where the defence is a general denial coupled with an allegation that a third party instead of the defendant is guilty of the offence charged, such that if it is disbelieved the jury has little choice but to convict the defendant, is a lies direction necessary or appropriate?”

5.The facts of the case and the evidence at trial are clear from our judgment of 12 April 2018. Likewise, the applicant’s grounds of appeal one of which was the alleged error of the judge in giving a lies direction.  We will not repeat them.

6.As regards the present application, the error that we are said to have fallen into was that we rested our analysis on “a distinction without a difference”, namely a defendant who baldly asserts that the drugs belong to a named third person, in which situation we said we thought a lies direction is unnecessary, and a defendant who has actually called that person to so testify, in which situation we said a lies direction has to be given, as in the present case.  It is said that, in so doing, we have put an unjustified gloss on settled authority viz Yuen Kwai Choi v HKSAR (2003) HKCFAR 113, at paragraphs 37-38 and Jim Fai v HKSAR [2006] 1 HKLRD 968, at paragraphs 21 and 23.

7.In so formulating his argument, counsel for the applicant has omitted to provide the full factual context of this case, that is, whilst giving evidence as a defence witness, the named third person (the applicant’s “cousin”) disavowed his earlier statement, given to a private solicitor at the applicant’s behest, of being the owner of the drugs seized, with the suggestion that the applicant had promised but failed to pay him.  It was in those circumstances that we upheld the trial judge’s decision to proffer a lies direction.  Like him, we were alarmed that the field was open for the jury to conclude that the original defence version of events was but a complete “fabrication”, as was alleged by the prosecution. The fact that the “cousin” was ‘turned hostile’ and was accused by the defence to be the untruthful party was neither here nor there.

8.In our judgment, the present application is entirely bereft of merit.  It raises no point of law of great and general importance and must be dismissed.

Mr Andrew Bullett, instructed by M/s Morley Chow Seto assigned by Director of Legal Aid, for the Applicant

Mr Nicholas Wong, SPP of Department of Justice, for the Respondent