HKSAR v. Lui Tsi Fai

CACC000340A/2001

CACC 340/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 340 OF 2001

(ON APPEAL FROM HCCC 196 OF 2000)

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Coram: Hon Stuart-Moore VP, Stock JA and Lugar-Mawson J

Date of Hearing: 7 November 2003

Date of Judgment: 7 November 2003

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.This is an application under the provisions of section 32(2) of the Court of Final Appeal Ordinance, Cap. 484 for a certificate that a point of law of great and general importance was involved in the judgment in this court on 1 April 2003. The Notice of Motion dated 27 May 2003 set out the point, as amended, in these terms:

"In appellate proceedings where the Court determines that there was a material misdirection at trial, in that the directions given by the trial judge directing the jury as to the truth of a witness' evidence and/or the guilt of a defendant, thereby precluding the jury from returning a verdict of not guilty, it is not open to the appellate court to apply the proviso under section 83(1) of the Criminal Procedure Ordinance, Chapter 221, since this denies the appellant his right to trial by jury and is contrary to section 41(2) of the Criminal Procedure Ordinance, and contravenes Articles 86 and 87 of the Basic Law of Hong Kong, Chapter 2101 and Article 11 of the Bill of Rights."

2.In our opinion, this application does not merit the granting of a certificate. Accordingly, the application is dismissed.

Representation:

Mr D.G. Saw, SC, DDPP and Mr Jonathan Man, SGC, of the Department of Justice, for the Respondent.

Mr Michael Poll, instructed by Director of Legal Aid, for the Applicant.