HKSAR v. Raman Kapusamy
Read the full judgment text of CACC 32/2020 on BabelCite. This Court of Appeal judgment was delivered on 2 November 2023 before Macrae ACJHC, Zervos JA, M Poon JA.
Criminal law – trafficking in dangerous drugs – methamphetamine – 2,956 grammes – Dangerous Drugs Ordinance (Cap 134) s.4(1)(a) and (3) – sentence of 26 years' imprisonment – application for certificate under s.32(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) – points of law of great and general importance – lies direction – whether ultimate responsibility lies on trial judge to give a lies direction irrespective of defence counsel's request – tactical error of competent counsel – Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126 – divergence between appellate counsel and trial counsel – appellate counsel not alleging incompetency – appeal concerned application of well-settled legal principle – no need for lies direction and no miscarriage of justice found – delay in application deprecated but considered – Question 2 conceded to be settled – Question 1 held not to arise because the appeal did not turn on whether the judge should override defence counsel's stance – questions do not raise points of great and general importance – application refused – Court declines to certify the questions posed.
Legal issues: Whether the two proposed questions satisfy the criteria for certification under s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484
Outcome: Application for certificate under s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, refused; questions not certified.
Cited by 6 cases · Cites 1 case
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CACC 32/2020 [2023] HKCA 1255 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 32 OF 2020 (ON APPEAL FROM HCCC NO 126 OF 2019) __________________________
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______________ JUDGMENT ______________ Hon M Poon JA (giving the Judgment of the Court) 1.The applicant was convicted of one count of trafficking in a dangerous drug, namely, 2,956 grammes of methamphetamine hydrochloride (“Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134) and was sentenced to 26 years’ imprisonment. His application for leave to appeal his conviction was refused and appeal dismissed on 9 March 2023. His application for leave to appeal his sentence was heard on 16 August 2023 with judgment reserved. 2.By a Notice of Motion dated 19 July 2023, the applicant now applies for a certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, that there are points of law of great and general importance involved in our decision. 3.Both parties have consented to this application to be determined on the papers. We have received written submissions from the applicant and the respondent, and a reply to the respondent’s submissions from the applicant. 4.The two questions sought to be certified are framed in the following terms:
The applicant’s submissions 5.In relation to Question 1, counsel for the applicant submitted that prosecuting counsel, in her closing address, had remarked that the applicant’s lies about the keys was due to a realization of his guilt, which went further than a mere attack on his credibility. It was thus incumbent upon the trial judge, in ensuring a fair trial, to override defence counsel’s argument against a lies direction. 6.The applicant conceded that the law in relation to Question 2 is now settled and articulated before the Court and does not involved a point of great and general importance. The respondent’s reply 7.The respondent took issue with the delay of more than four months in the present application and objected to the application for a certificate out of time. In any event, it was submitted that the view of the trial judge that the circumstances of the present case did not call for a lies direction was supported on appeal. Question 1 simply does not arise. 8.Likewise, the present appeal never encompassed the issue of tactical error made by trial counsel, only that appellate counsel took a different view from that of his predecessor. The law in that area was settled in Chong Ching Yuen. Discussion 9.There is a delay in making the present application, which is not insubstantial. It was explained that leave was originally sought on the second limb (grave and substantial injustice) with the Court of Final Appeal and it was not until later that questions of law were identified. It was submitted that no prejudice was caused. 10.We set out the chronology as follows:
11.It would seem to us that the issues of law which are stated to be of great and general importance were not identified by counsel representing the applicant at the appeal immediately after our judgment was handed down. A choice was made to rely on the second limb about two months later instead which contributed to the delay. Whilst such delay is deprecated, we have nonetheless considered this application. Now that counsel had conceded that the law in relation to Question 2 is well-settled, we would focus on dealing with Question 1. We conclude that Question 1 does not satisfy the criteria for certification under s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484. 12.The applicant rightly pointed out that this Court identified two issues on appeal[1]:
13.At the appeal hearing, Mr Boyton, acting for the applicant, made it plain that he was not going so far as to allege incompetency of trial counsel[2]. His stance was that the grounds should still be entertained on a divergence of views provided that the Court is satisfied that due to the failure to give a lies direction justice miscarried. Therefore, our concern was whether the circumstances of the case warranted a lies direction. This we had canvassed at length and we came to the view that the judge was correct in not giving a lies direction[3]. Since there was no need to give such a direction, there was no miscarriage of justice. 14.The appeal never turned on the issues framed in Question 1. The Court was not required to make a finding as to whether the trial judge should override trial counsel’s insistence against a lies direction. This was not a case that the judge acceded to the request of defence counsel and failed to ensure a fair trial. The judge considered the matter and came to the view that there was no such need. We examined the evidence, prosecution counsel’s closing submission and the judge’s summing up and agreed with the decision of the judge. Conclusion 15.The appeal before us concerned the application of a well settled legal principle. The question cannot be said to raise points of great and general importance. The Court declines to certify the questions posed.
Mr Derek Lau, SADPP(Ag.) and Ms Katie Fong, PP of the Department of Justice, for the respondent Mr David Boyton, instructed by Swainston Solicitors, assigned by Director of Legal Aid, for the applicant [1] [2023] HKCA 10, at paragraph 20 [2] [2023] HKCA 10, at paragraph 29 [3] [2023] HKCA 10, at paragraphs 30-35 | |||||||||||||||||||||||||||||||||||||||
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