Lau Chi Ming v. HKSAR

FAMC No. 31 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 31 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
CACC NO. 617 OF 2002)

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Between:

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Appeal Committee: Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Ribeiro PJ

Date of Hearing: 31 May 2005

Date of Determination: 31 May 2005

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

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Chief Justice Li :

1.The applicant was charged with five counts of sexual offences involving his domestic helper.  He was acquitted on three counts but was convicted of one count of rape and one count of indecent assault.

2.He did not give evidence at the trial.  In relation to the rape count, the line pursued in cross-examination on his behalf was that the incident never occurred.  In relation to the indecent assault count, the line pursued was that the complainant had consented to the oral sex.

3.On this application for leave, his argument is in essence that the judge failed to direct the jury on the element of consent on the rape count.  In this connection, he relies on what he said to the police when cautioned in respect of rape, namely, “we did it voluntarily”.

4.The judge must of course give a fair and balanced summing up.  The question is whether an arguable case has been made out that the summing up has departed from accepted norms, constituting substantial and grave injustice.

5.Having regard to the line pursued by the defence that the rape incident never occurred, the judge had to exercise a judgment, having the feel of the trial, whether to draw attention to the cautioned statement, bearing in mind that doing so may undermine that defence.  In these circumstances, it is not reasonably arguable that his failure to do so is a departure from accepted norms constituting substantial and grave injustice.

6.Accordingly, leave to appeal is refused.

Mr James H M McGowan (instructed by Messrs Lunning & Chan, assigned by the Legal Aid Department) for the applicant

Mr D G Saw, SC and Ms Agnes Chan (of the Department of Justice) for the respondent