HKSAR v. Lo Hon Hing and Others

CACC 107/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 107 OF 2007

(ON APPEAL FROM HCCC NO. 89 OF 2006)

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BETWEEN

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Before: Hon Stuart-Moore VP, McMahon and Wright JJ

Date of Hearing: 6 January 2009

Date of Judgment: 6 January 2009

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.This matter comes before us as an application for a certificate that a point of law of great and general importance was involved in the decision we gave in this matter on 12 September 2008.

2.Mr McCoy SC, for the 1^st applicant, Lo Hon-hing (D1), as he was in the appellate proceedings beforehand, submitted the following point for our consideration in a Notice of Motion, dated 13 October 2008, which, it follows, was out of time:

“Is it a misdirection in law for a judge to direct a jury to evaluate the evidence by excluding from their decision-making any evidence that was not ‘reasonably possible’?”

Similar Notices of Motion for the two remaining applicants, Li Cho-ming (D2) and Lam Tse-lik (D3), suggesting a misdirection on the trial judge’s part when she directed the jury that they should exclude from their decision-making any evidence that was not “reasonably possible”, were also lodged out of time.  In D3’s case alone, the explanation for the delay is one which is entirely acceptable.

3.The point is a short one which we have dealt with in the judgment at paragraphs 24 to 30.  We do not consider that a certificate would be justified.

4.Accordingly, these applications are refused.

Mr Kevin P Zervos, SC, DDPP, and Ms Peggy Lo, SPP, of the Department of Justice, for the Respondent.

Mr Gerard McCoy, SC, instructed by Messrs Chan & Tsu, assigned by Director of Legal Aid, for the 1^st Applicant (D1).

Mr Gerard McCoy, SC, instructed by Messrs Raymond Chan, Kenneth Yuen & Co., assigned by Director of Legal Aid, for the 2^nd Applicant (D2).

Mr Nigel de Boinville, instructed by Messrs Cheung & Yip, assigned by Director of Legal Aid, for the 3^rd Applicant (D3).