Read the full judgment text of FACC 1/1997 on BabelCite. This FACC judgment was delivered on 11 March 1998 before Chief Justice Li, Litton PJ, Ching PJ, Bokhary PJ, Sir Daryl Dawson NPJ.
Criminal law and practice – good character direction – Vye [1993] 97 Cr.App.R. 134 and Aziz [1996] 1 AC 41 – whether invariable rule requiring both credibility and propensity directions should be adopted in Hong Kong – trial judge treated defendant as of good character despite previous conviction for assault occasioning actual bodily harm – judge gave credibility direction but not propensity direction – appellant convicted of manufacturing dangerous drug (heroin) and trafficking in dangerous drugs – key facts: police surveillance on flat in Shatin, defendant arrived with keys 40 minutes after first suspect, allegedly said "Ah Sir, I've been caught red-handed", defendant claimed he had sub-let flat to first suspect and went to collect rent and stereo – defendant was 23 with one previous conviction for non-dishonest assault – key issue 1: whether the Vye and Aziz regime requiring an invariable rule of practice for both credibility and propensity directions should govern Hong Kong – held: no, the modern tendency is to limit compulsory standard directions, and Hong Kong should leave the matter to the trial judge's discretion, ensuring the summing-up is fair and balanced – the Vye principles were born of convenience to address a proliferation of English appeals but produce artificial results, requiring directions that stretch common sense and qualifications that return to common sense – other common law jurisdictions (Australia, New Zealand) also favour a flexible approach – key issue 2: whether the trial judge erred in failing to give the propensity direction – held (majority, Bokhary PJ dissenting): no, the trial judge had wide discretion, the credibility direction was the appropriate focus given the central issue was credibility, and there was nothing useful that could have been said about the appellant's propensity for the crimes charged – the two limbs of the good character direction often merge – Bokhary PJ dissenting would have allowed the appeal, finding the omission of the propensity limb was a non-direction that could not safely be said to have caused no miscarriage of justice, given the gravity of the charges and the 5-2 majority verdict – outcome: appeal dismissed, conviction and total sentence of 25 years' imprisonment affirmed.
Legal issues: Adoption of Vye and Aziz regime for good character directions in Hong Kong · Whether trial judge erred in failing to give propensity direction
Outcome: Appeal dismissed by majority (Bokhary PJ dissenting). Court of Appeal's decision to dismiss the appellant's appeal against conviction affirmed, albeit on a different ground.