The Queen v. Yuen Koon-lin

CACC000213/1988

IN THE COURT OF APPEAL

BETWEEN

Coram: Hon. Cons, V-P, Fuad, V-P and Mortimer, J. in Court.

Date of Hearing: 25th August, 1988.

Date of Delivery of Judgment: 25th August, 1988.

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J U D G M E N T

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Mortimer, J.

1. We have given leave to the Appellant to appeal out of time.

2. She was convicted on 10th September 1985 of a joint offence of using an instrument to procure the miscarriage of a 14 year old girl MA Sau-tai after a trial lasting 7 days before Barnes J. and a jury. The Appellant was the 2nd Defendant.

3. On 6th December 1985 this court allowed an appeal against the conviction of the 1st Defendant and she was discharged.

4. In the course of his summing up the learned judge said to the jury at page 22R:-

"If you found the 1st Defendant not guilty, you must automatically find the 2nd Defendant not guilty because, if the 1st Defendant was not guilty, the 2nd Defendant could not be guilty of setting up an offence which you found was not committed."

5. This direction of the learned judge was correct.

6. It is not possible for this court to hold that a jury properly directed would have convicted the 1st Defendant. It follows therefore that this appeal of the 2nd Defendant must be allowed.

Cons, V.P.

7. The conviction is quashed and we order the fine to be refunded.

Representation:

Mr. Roderick Murray (Knight & Ho) for the Applicant Yuen Koon-lin.

Mr. I.G. Cross & Miss Catherine Fung (Crown Prosecutor) for Respondent.