The Queen v. Wong Siu-chung

CACC000571/1994

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Coram: Hon Yang, C.J., Power, V.-P. & Mortimer, J.A.

Date of Hearing: 7th & 30th June 1995

Date of Judgment: 30th June 1995

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JUDGMENT

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Power, V.-P. (giving the judgment of the Court):

1. We gave our judgment in this matter on 7th June refusing the application for leave to appeal against conviction. When preparing that judgment for signature and re-reading the summing-up, it seemed to us that the trial judge may well have misdirected the jury when he left evidence, which he described as being of a neutral nature, to them without indicating that it would, standing alone, not be sufficient to allow them to return a verdict of guilty.

2. Ground 2 did not attack that direction but contended rather that the jury may have unreasonably acted upon that evidence. The distinction is a fine but important one. Had the ground been upon the basis that the judge left evidence to the jury insufficient to warrant a finding of guilt, we would have been forced to the conclusion that the verdict was unsafe and unsatisfactory. We have heard further argument from Mr. Loughran and from Mr. Bruce. We are satisfied that the verdict cannot stand, the conviction being unsafe and unsatisfactory because of the nature of the direction given to the jury. We have anxiously considered whether or not we should order a re-trial and, with some misgivings, we are satisfied that it would not be fair so to do.

3. The application is allowed. The hearing of the application is treated as the hearing of the appeal and the conviction is quashed.

Representation:

Mr. Paul Loughran (D.L.A.) for Applicant re conviction.

Mr. A.A. Bruce, Deputy Crown Prosecutor (Ag.) for Crown/Respondent.