Kam Susanto v. HKSAR

FAMC No. 87 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 87 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 542 OF 2003)

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Between:

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

Date of Hearing: 27 February 2006

Date of Determination: 27 February 2006

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

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Mr Justice Bokhary PJ:

1.This case does not involve any controversy as to the law calling for resolution by the Court of Final Appeal.  The relevant law is set out in the Court’s decision in Yuen Kwai Choi v. HKSAR (2003) 6 HKCFAR 113.

2.So we turn to the application of the law.  Having been invited to do so by both the prosecution and the defence, the trial judge gave the jury a lies direction.  The Court of Appeal noted that he did not specifically warn the jury that lies can never prove guilt in themselves.  And they said that it would be better if he had done so.  But they were of the view that the directions as a whole adequately conveyed that warning to the jury.  Views of that sort are essentially for the intermediate appellate court to form.  We see no reasonable prospects of the Court of Final Appeal overturning the Court of Appeal’s view on the matter.

3.Accordingly leave to appeal to the Court of Final Appeal is refused.  Before parting with this application, we would issue a respectful but strong reminder to trial judges that it would be better if, when giving a lies direction, they were to say something specifically to the effect that an accused cannot be found guilty merely because he or she has lied.

Mr William Allan and Mr Lawrence Cheung (instructed by Messrs Leung Chan & Pang) for the applicant

Mr John Reading SC and Miss Ada Chan (of the Department of Justice) for the respondent