HKSAR v. Chau Yui Ming

FAMC No. 1 of 2019

[2019] HKCFA 12

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1 OF 2019 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 441 OF 2015)

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BETWEEN

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DETERMINATION

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Chief Justice Ma:

1.We are satisfied that leave to appeal should be granted in respect of the following questions of law:

“(a) Whether on a single count of trafficking in dangerous drugs which involves different quantities and types of drugs, and where there is evidence to support a number of possible defence scenarios in trial (i.e. primary and secondary defence strategy), the prosecution should have applied to amend the indictment to allow for alternative counts of unlawful trafficking in dangerous drugs for the different defence scenarios?

(b) If the answer to (a) is no, then whether the court should direct the jury that it was an ‘all or nothing case’ thereby depriving the jury of other verdicts which could be open to a defendant?”

2.We also grant leave to appeal to the applicant to argue that the trial judge’s directions to the jury resulted in substantial and grave injustice to the applicant.

3.The appeal will be heard on 15 October 2019.

Mr Gerard McCoy SC and Mr Richard Donald, instructed by Cheung & Liu, assigned by the Director of Legal Aid, for the Applicant

Mr David Leung SC, DDP and Mr Joe Hui, SPP (Ag.), of the Department of Justice, for the Respondent