HKSAR v. Tsim Sum Kit, Ada

FAMC No. 38 of 2023

[2023] HKCFA 45

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 38 OF 2023 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 153 OF 2021)

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DETERMINATION

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The Appeal Committee:

1.We are satisfied that the first of the questions of law for which leave to appeal is sought is of the requisite importance and is reasonably arguable, namely:

“Does section 3(2) of the Homicide Ordinance (Cap 339) unjustifiably derogate from the Applicant’s right of presumption of innocence under Article 87(2) of the Basic Law and Article 11(1) of the Hong Kong Bill of Rights, and if so, should section 3(2) be read down as imposing only an evidential burden?” (Question 1)

2.Accordingly, we grant leave to appeal in respect of that question.

3.The applicant also seeks leave to appeal in respect of the following further question of law, namely:

“Does a lies direction need to be given when the prosecution relies on the defendant’s lies and deceit not to prove guilt but to undermine the defendant’s defence, which the defendant has the burden of proving?” (Question 2)

4.We are not satisfied that this question, as framed in such broad terms, properly arises on the facts of the present case in view of the actual direction given to the jury by the judge in respect of the applicant’s account to the defence psychiatric expert witness and the fact that the form and content of that direction was the subject of submissions from counsel before the judge summed up the case for the jury and agreed by defence counsel.

5.We are likewise not satisfied that it is reasonably arguable that the trial judge departed from accepted norms in her directions to the jury on the evidence of (i) the applicant’s feigning of symptoms of a mental illness, and (ii) lies she may have told to the two psychiatrists who examined her. We therefore decline to grant leave to appeal on the substantial and grave injustice limb of section 32(2) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) as sought by the applicant.

6.The appeal, thus limited to Question 1, will be listed for hearing on 8 May 2024.

Mr Simon NM Young, instructed by GT Lawyers, assigned by the Director of Legal Aid, for the Applicant

Mr William Tam SC, DDPP and Mr Michael Ma SPP, of the Department of Justice, for the Respondent