HKSAR v. Cheng Kam Shui

HCMA 744/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 744 OF 2010

(ON APPEAL FROM KCCC 6397/2009)

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Before: Deputy High Court Judge Stuart-Moore in Court

Date of Hearing: 24 June 2011

Date of Judgment: 24 June 2011

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J U D G M E N T

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1.On 24 June 2011, by a Notice of Motion dated 23 June 2011, I was invited by Ms Charlotte Draycott SC, on behalf of the applicant, to grant a certificate pursuant to section 32(2) of the Court of Final Appeal Ordinance, Cap. 484, that points of law of great and general importance were involved in the judgment I handed down on 24 June 2011 after the applicant’s appeal against conviction on two charges. There were five other charges on which the learned Magistrate acquitted. The points were set out as follows:

“1. Where a court considers a series of offences of the same or similar nature but fails to act on mutual admissibility of evidence between the charges for the purpose of judging a defendant’s state of mind, does the court misdirect itself by judging the charges in isolation, thereby excluding from its consideration facts in relation to any charge capable of supporting an exculpatory inference or resolving ambiguity or credibility in favour of the defendant?

2. Thus where a court considers a series of offences of the same or similar nature and finds that there is a reasonable possibility that the defendant did not have the requisite intent in relation to some of them and is therefore not guilty, that should be relevant factor in his consideration of the defendant’s state of mind in relation to the remaining offences.

3. It is submitted that this is the corollary of the rule that had the court found that the defendant was possessed of the relevant guilty intent on some of the charges, this would be a factor for its consideration when it came to consideration of the remainder.”

2.I declined to grant a certificate.

Ms Cecilia S W Chan, SPP of the Department of Justice, for the Respondent

Ms Charlotte E Draycott, SC leading Mr Francis M B Cheng, instructed by Messrs Yaddy Cheung & Co, for the Applicant