Lo Hon Hing and Others v. HKSAR

FAMC No. 10 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 10 OF 2009 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 107 OF 2007)

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Between:

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

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Chief Justice Li:

1.On 25 March 2007, the 1^st and 2^nd applicants together with another person were convicted of murder and the 3^rd applicant was convicted of manslaughter before V Bokhary J and a jury.  The applicants seek leave to appeal out of time on the point of law limb.  The Court of Appeal had dismissed their application to certify a point of law.

2.The facts are set out in the judgment of the Court of Appeal.  The prosecution’s case was that the applicants were part of a group of men who mounted an armed attack with knives on the deceased.  The deceased was a newspaper vendor.  She organized and acted as a spokesperson for newspaper stall owners in the district where she operated to object to a new practice introduced by the local newspaper distributor under which newspaper vendors were no longer allowed to return unsold copies of Oriental Daily.  The prosecution alleged that the armed attack was to teach her a lesson and to silence her.  The evidence connecting the applicants to the offence consisted of their admissions to the police following their arrest.  The Judge had ruled that they were voluntary and were admissible.

3.The applicants advanced various grounds before the Court of Appeal.  But on the present application for leave, only one ground is relied on.  Their complaint is that the Judge had used the phrase “reasonably possible” in the following passage in the summing up:

“As to using your common sense, you may ask yourselves this.  Suppose a group of men go somewhere for the purpose of an attack on a person, whether he goes to act as actual attacker or as lookout, is it reasonably possible that any member of the group would not know what sort of victim it would be?  Is it reasonably possible that he would not know what sort of attack it would be?  Or do you think that the only reasonable inference in this case is that each man knew all of that?  As always, you are the sole judges of fact : not speculating but using your common sense; trying the case fairly and upon your view of the evidence as the sole judges of fact, you do your duty as the jury.” (63L-R)

It is submitted that this raises a question of law as to whether it is a misdirection for a judge to direct a jury to evaluate the evidence by excluding from their decision-making any evidence that was not “reasonably possible”.

4.The Court of Appeal held that the use of the phrase in the context in which the Judge used it was not objectionable.

“A jury, exercising its common sense when deciding what evidence to accept, is expected to approach its task on a rational basis.  In this sense, something which is possible can only sensibly be reasonably possible.  This being said, we consider that it is preferable for judges to use the well-established direction that if something said by a defendant ‘is or may be true’ then it should be decided in his favour.” (at para 29)

It held that what was said was in no way inconsistent with or undermined the applicants’ right to the benefit of any reasonable doubt the jury may have found existed in the prosecution’s case.

5.In our view, the Court of Appeal was plainly right in its conclusion.  While it is preferable for judges to use the well-established “is or may be true” direction, the use of the phrase “reasonably possible” was in the context in which it was used in the present case unobjectionable.  The phrase was only used by way of example as to how to exercise common sense in deciding what evidence to accept, meaning that something which was not reasonably possible would be purely speculative.  The phrase was not part of and did not in any way affect the Judge’s clear directions on the burden and standard of proof as to which no complaint is made.

6.Accordingly, the applications for a certificate, for leave to appeal and for extension of time are dismissed.

Mr Gerard McCoy SC (instructed by Messrs Raymond Chan, Kenneth Yuen & Co. and assigned by the Legal Aid Department) for the applicants

Mr Kevin P Zervos SC and Ms Peggy Lo (of the Department of Justice) for the respondent