HKSAR v. Ho Kin Sang

CACC000449A/1999

CACC 449/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 449 OF 1999

(ON APPEAL FROM HCCC 432 OF 1998)

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Coram: Hon Stuart-Moore VP, Mayo VP and Wong JA

Date of Hearing: 14 July 2000

Date of Judgment: 14 July 2000

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D E C I S I O N

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Stuart-Moore VP (giving the decision of the Court):

1. This is an application under 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 is involved in the judgment of this court given on 1 June 2000, the reasons for which were handed down on 19 June 2000.

2. Mr McNamara, on behalf of the Applicant, has posed the following question on which he has invited the court to grant a certificate:

"The Court of Appeal is not entitled to substitute verdicts where inconsistent verdicts are brought in by a jury when the Court can only guess which of the verdicts truly reflects the findings of facts by the jury."

3. The question is in two parts.

` As to the first part, the Court of Appeal is empowered to substitute a conviction for another offence when it finds that a conviction cannot stand and that the combined effect of the provisions of sections 51, 83 and 83A is satisfied.

4. As to the second part, the court did not have to engage in guesswork or speculation. It was readily apparent what the jury's findings had been although why they returned inconsistent verdicts was less than clear. No misdirection as to count 1 (manslaughter) has ever been suggested and, standing alone, there was nothing which occurred in the trial to upset this conviction. Plainly, the inconsistency lay in count 2 and the substitution of unlawful wounding for wounding with intent corrected this glaring error.

5. We can say that we can find no point of great and general importance to be involved in the judgment given by this court and, accordingly, we decline to certify the point which has been raised.

Representation:

Mr D.G. Saw, SC, DDPP and Mr Gary Lam, GC, of the Department of Justice, for the Respondent.

Mr John McNamara, instructed by Legal Aid Department, for the Applicant.