Read the full judgment text of FACC 000008/2005 on BabelCite. This FACC judgment was delivered on 15 February 2006 before Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Ivor Richardson NPJ.
Criminal law – dangerous drugs – trafficking in a dangerous drug contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 – heroin and drug-cutting paraphernalia found in appellant's small Kwun Tong public housing flat – prosecution case that appellant ran or permitted a cutting and packaging centre – defence that appellant was unaware of items found in flat – appellant's evidence was central to the case – trial judge's direction on how the jury should approach the appellant's evidence – whether trial judge misdirected the jury as to the proper treatment of defence evidence – whether an unnecessary lies direction was given – jury wrongly directed that they could only act on appellant's evidence if satisfied it was truthful – failure to convey that defence evidence, if possibly true, could give rise to a reasonable doubt – whether the proviso should be applied to uphold the conviction – re-trial ordered in the interest of justice – substantial and grave injustice established – proper approach to defence evidence is intrinsically linked to the direction on burden and standard of proof – lies direction generally unnecessary in straightforward conflicts of evidence – misdirection as to the onus of proof on the only seriously contested issue seldom appropriate for the proviso – original sentence 10½ years with 4½ years served – appeal allowed, conviction quashed, sentence set aside, re-trial ordered, appellant remanded in custody pending re-trial listed at an early date.
Legal issues: Misdirection on approach to defence evidence · Propriety of lies direction · Application of the proviso · Whether a re-trial should be ordered
Outcome: Appeal allowed; conviction quashed; sentence set aside; re-trial ordered.