Yu Wing Hung v. HKSAR

FAMC No. 33 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 33 OF 2004 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 406 OF 2002)

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Between

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D E T E R M I N A T I O N

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Mr Justice Chan PJ:

1.The applicant was, after a trial before a judge and jury which was conducted in Chinese, convicted of trafficking in a large quantity of ice.  His application for leave to appeal to the Court of Appeal was dismissed.  In seeking leave from this Committee to appeal to the Court of Final Appeal, the applicant criticizes the trial judge’s summing up in relation to the standard of proof, more specifically on the meaning of “reasonable doubt”. 

2.At the trial, when asked by the jury, the judge gave a direction on “reasonable doubt” in terms which were approved by the English Court of Appeal, namely : “A reasonable doubt is the sort of doubt that might affect the mind of a person in dealing with matters of importance in his own affairs”. 

3.The applicant’s first complaint is that this direction which has been adopted as a specimen direction in Hong Kong is unintelligible and that the Chinese translation used by the judge does not carry the mental element of “affect the mind”. The second complaint is that the law on reasonable doubt is also not readily intelligible and that attempts to explain this term in the English cases often add to confusion. It is submitted that these are points of law of great and general importance which should be revisited by the Court of Final Appeal and alternatively as a result of the judge’s summing up on this crucial issue, the applicant has suffered substantial and grave injustice.

4.The principle that the prosecution have a duty to prove the guilt of a defendant beyond reasonable doubt is a cornerstone of our criminal justice.  For years, this has been taken to mean that the prosecution must make the jury feel sure that the defendant is guilty of the charge. This principle has to be followed in every criminal case although individual judges may choose different wording.

5.But as Lord Goddard CJ said in R v. Kritz [1950] 1 KB 82 (which was cited with approval by the Privy Council in Waltersv. R [1969] 2 AC 26 at 30C) :

“It is not the particular formula that matters: it is the effect of the summing-up.  If the jury are made to understand that they have to be satisfied and must not return a verdict against a defendant unless they feel sure, and that the onus is all the time on the prosecution and not on the defence, then whether the judge uses one form of language or another is neither here nor there.” 

6.We are not persuaded that this fundamental principle needs to be revisited. Nor are we persuaded that it is reasonably arguable that in this case, what the judge had said in his Chinese summing up to the jury had departed from this principle. In fact he had repeatedly told the jury that they must be sure of the applicant’s guilt before they could convict him. We see no basis for suggesting that the jury had in any way been confused.

7.Accordingly, we dismiss the application.

Mr Paul Tong (instructed by Messrs Haldanes) for the applicant

Mr Cheung Wai-sun and Ms Olivia Tsang (of the Department of Justice) for the respondent