Lui Tsi Fai v. HKSAR

FAMC000053/2003

FAMC No. 53 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 53 OF 2003 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 340 OF 2001)

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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 27 February 2004

Date of Determination: 27 February 2004

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DETERMINATION

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Mr Justice Bokhary PJ:

1.The jury convicted this applicant of murder. On the question of the verdicts open to them, the jury had received this direction from the trial judge, Suffiad J:

"The only possible verdicts that you can return in this case is either a verdict of guilty of murder or a verdict of guilty of manslaughter. There is no other verdict that you can return in this case".

That, the Court of Appeal (consisting of Stuart-Moore VP, Stock JA and Lugar Mawson J) held, was a misdirection. They said that it was a misdirection because "whether or not the facts which [the applicant] recounted to the jury amounted to an unlawful killing was for the jury and not the judge to decide". But they dismissed the appeal by applying the proviso, giving these reasons for doing so:

"There was no prospect whatever of an acquittal, at the very least, for the offence of manslaughter. However, this misdirection could not, in any event, conceivably have had any impact on the jury's findings because, leaving aside the inevitability of at least a conviction for manslaughter, the jury's verdict of guilty on the count of murder meant that a full acquittal could never have been an option even if they had been properly directed."

2.Now the applicant asks us to certify the involvement of a point of law of great and general importance, and to grant him leave to appeal to the Court of Final Appeal on that point. The point, as formulated in the applicant's summons, reads:

"Where the Appellate Court determines that there was a material misdirection by the trial Judge in his summing up to the jury in that the trial Judge directed the jury that they must find the defendant guilty, thereby precluding the possibility of the jury from considering and 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 statutory right to trial by jury and is contrary to Section 41(2) of the Criminal Procedure Ordinance, Chapter 221 and contravenes Articles 86 and 87 of the Basic Law and Article 11 of the Bill of Rights."

3.In short, the point put forward on the applicant's behalf is that it is unconstitutional to apply the proviso in a situation of this kind. In our view, the point is without substance. If it is reasonably possible that a jury would have acquitted outright if the option of doing so had been left to them, then of course no conviction following the withdrawal of that option could ever be sustained. No such conviction can be sustained just because the appellate court considers it highly unlikely that the jury would have acquitted outright even if the option of doing so had been left to them. That is not how the proviso ever operates. In a case of the present kind, the proviso operates on the basis that the appellate court is satisfied that no reasonable jury would have acquitted outright even if the option of doing so had been left to them. If the appellate court is satisfied of that, then quashing the conviction founded on the guilty verdict returned by the jury would run counter to the concept of trial by jury.

4.We decline to certify the point put forward on the applicant's behalf. Leave to appeal is refused.

Representation:

Mr Michael Poll (instructed by the Legal Aid Department) for the applicant

Mr D.G. Saw SC and Miss Grace Chan (of the Department of Justice) for the respondent