Li Kam Shing v. HKSAR

FAMC No. 46 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 46 OF 2004 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 153 OF 2004)

_____________________

Between:

_____________________ 

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

Date of Hearing: 13 December 2004

Date of Determination: 13 December 2004

______________________

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

______________________

Mr Justice Bokhary PJ:

1. The applicant was on intimate terms with a divorced woman who lived in a flat with her two daughters.  There were occasions when the applicant and the elder daughter were the only persons in the flat.  He was charged that on three such occasions in 2002, when she was aged 13, he committed sexual offences against her.  Counts 1 and 2 were of indecent assault while Count 3 was of rape.  The jury convicted him of indecent assault as charged under Counts 1 and 2.  On Count 3 they acquitted him of rape but convicted him of indecent assault. 

2. He denied committing any offence against the complainant.  The only evidence on which to convict him was her evidence against him.  It was unsupported.  And there was an evidential basis for suggesting that it may be unreliable.  The first line of argument advanced in support of this application for leave to appeal to the Court of Final Appeal is that the trial judge’s failure to warn the jury to exercise caution before acting upon her unsupported evidence against him constituted a substantial and grave injustice.

3. The Court of Appeal observed that most judges would have given a warning in circumstances like these.  But they were nevertheless of the view that the trial judge had acted within his discretion in omitting to give a warning.  Taking a view of an issue of this kind is essentially a task to be performed by the intermediate appellate court.  Only in very exceptional cases would the Court of Final Appeal interfere.  Upon a careful consideration of all the circumstances, we do not consider it reasonably arguable that this is such a case.

4. So we turn to the other argument advanced in support of this leave application.  It is that the trial judge had told the jury that no inference could be drawn unless it was the only reasonable but did not make it clear that he meant inferences against an accused, so that the jury may have got the impression that even an inference in favour of an accused cannot be drawn unless it is the only reasonable one.  But what the trial judge said was said in the context of inferences against an accused.  And we regard it as plain beyond reasonable argument to the contrary that the jury would have understood that.  The trial judge also said that in a situation in which an inference can be drawn for an accused or an inference can be drawn against him, then the inference against the accused cannot be drawn.  We think that it is plain beyond reasonable argument to the contrary that the jury were given to understand that any reasonable doubt however arising, whether by way of inference or otherwise, on any material issue had to be resolved in the accused’s favour.  That being so, this argument, too, does not avail the applicant.

5. Leave to appeal is refused.

Mr Geoffrey P. Chang (instructed by Messrs Christopher Li & Co.) for the applicant

Mr David Leung (of the Department of Justice) for the respondent