Huang Song Fu v. HKSAR

FAMC No. 7 of 2007

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 7 OF 2007 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 141 OF 2005)

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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: 30 March 2007

Date of Determination: 30 March 2007

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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 applicant seeks leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal affirming his conviction in the High Court for manufacturing dangerous drugs.  He seeks such leave on the “substantial and grave injustice” ground, making two complaints against the trial judge’s directions to the jury.  The first complaint is against what the Court of Appeal described as an “abbreviated” lies direction.  Shortly stated the argument under this complaint is that the direction should have included a reference to the need to be “sure” that the alleged lies were indeed untrue.  We do not consider that any lies direction, abbreviated or otherwise, was necessary in the circumstances of the present case.  Nor do we think it reasonably arguable that any injustice could have resulted from the omission from it of a reference to the need to be “sure” that the lies were indeed untrue.  The alleged lies consisted of the applicant’s protestation of innocence, and the jury were properly given to understand that the burden was on the prosecution to make them feel sure of the applicant’s guilt.  From that norm there was no reasonably arguable departure in the present case.

2.The second complaint is against trial judge’s directions to the jury on a majority verdict.  This jury was reduced to six, and convicted by a majority of five to one.  The complaint against the majority verdict direction is stated thus in the Notice of Application for Leave to Appeal :

“In his summing up the learned trial judge departed from :

(i)    the specimen direction which provides a formula to the effect that should the jury be unable to reach a verdict with an acceptable majority the judge will give further directions; and

(ii)   the standard ‘Watson direction’ with regard to the deliberations of the jury; further, it will be submitted the trial judge’s remarks that ‘so it is a lot of give and take’ were a misdirection.”

3.Having fully taken on board the imperfections of the trial judge’s directions to the jury on a majority verdict, the Court of Appeal did not consider those imperfections fatal.  In this connection, too, there was no reasonably arguable departure from accepted norms in the present case.

4.For these reasons, leave to appeal is refused.

Mr Peter Duncan SC (instructed by Messrs Ivan Tang & Co. and assigned by the Legal Aid Department) for the applicant

Mr Robert S K Lee and Ms Teresa Kam (of the Department of Justice) for the respondent