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HKSAR v. Kwan Tat Yee (關達儀)

Read the full judgment text of FAMC 13/2023 on BabelCite. This FAMC judgment.

1. We grant leave to appeal on the question certified by the Court of Appeal as follows, namely:

Case No.FAMC 13/2023[2023] HKCFA 15
Court
FAMC
Date—
Judge—
Case Document
100%Judiciary

FAMC No. 13 of 2023

[2023] HKCFA 15

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 13 OF 2023 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NO. 213 OF 2018)

_______________________

BETWEEN
  HKSAR Respondent
  and  
  KWAN TAT YEE (關達儀) Applicant

_______________________

Appeal Committee: Mr Justice Ribeiro PJ, Mr Justice Lam PJ and Mr Justice Stock NPJ
Date of Hearing and Determination: 12 June 2023

______________________________

DETERMINATION

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The Appeal Committee :

1.We grant leave to appeal on the question certified by the Court of Appeal as follows, namely:

“In a jury trial, should the Liberato direction be re-framed along the following lines as suggested by the majority of the High Court in Australia in De Silva v R (2019) 375 ALR 1 at [12]:

‘(i) if you believe the accused’s evidence (if you believe the accused’s account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused’s evidence (if you do not believe the accused’s account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt’?”

2.We also grant leave to appeal on the following question (modifying the form of the question proposed by the applicant) as follows, namely:

“In a jury trial, under what circumstances should a Liberato direction be given? In particular, is it appropriate or necessary for it to be given in relation to a defence witness’s inconsistent statements or conflicting defence evidence?”

3.We refuse leave on the substantial and grave injustice basis. We do not consider the allegation regarding an equivocal admission reasonably arguable. We also consider that the Mushtaq direction point peripheral and in any event, sufficiently covered within the issues raised by the second question mentioned above.

4.The appeal will be listed for hearing on 24 November 2023.

(R A V Ribeiro)
Permanent Judge 		(M H Lam)
Permanent Judge 		(Frank Stock)
Non-Permanent Judge

Mr Eric TM Cheung, Solicitor Advocate and Mr Anthony Lai (both assigned by the Director of Legal Aid) and Ms Christie Lee (on a pro bono basis), instructed by ONC Lawyers, for the Applicant

Mr William Tam SC, DDPP and Ms Chan Sze Yan SPP, of the Department of Justice, for the Respondent