HKSAR v. Wong Lin Hung and Others

FAMC No. 26 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 26 OF 2013 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 52 OF 2011)

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BETWEEN

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ:

1.We dismissed this application for leave to appeal, with reasons to be provided later.  These are our reasons.

2.The three applicants were convicted after trial before Deputy High Court Judge Toh (now Toh J) of one count of conspiring with Lee Pau Chuen (PW2) and one other, to rob Wong Cheung Ho (PW1).  The 1^st applicant was additionally convicted of one count of possession of arms without a licence.

3.The application for leave to appeal was on the substantial and grave injustice ground and was based on the judge’s direction to the jury in respect of the evidence of PW2, an accomplice.

4.In her summing up, the judge warned the jury about two things concerning the evidence of PW2: first, that they must be “very, very careful and cautious with his evidence” and, secondly, that he “may lie for his own benefit” because “he hopes to get a reduced sentence and so he may lie and say things which are self-serving in order to achieve his goal”.  She also told the jury that, although he had pleaded guilty to the conspiracy charge, they had to be “cautious because he may try to say things in order to reduce his sentence eventually”.

5.Mr Andrew Bruce SC, for the applicants, submits that the judge did not go far enough and that, to comply with accepted norms, the jury should be informed of the “the stakes”.  It was therefore incumbent on the judge to inform the jury that ordinarily a witness in the position of PW2 would expect to receive a substantial discount in his sentence in the order of 40% to 60%.

6.We see no reasonable prospect of this argument succeeding.  As the Court of Appeal pointed out in this case (at §89 of their judgment), there is no hard and fast rule as to how a judge should direct a jury in this regard.  What the jury must be told is that, when considering the truthfulness and reliability of the evidence of an accomplice witness, they must bear in mind the possibility that the witness may lie in order to obtain a sentence discount.

7.But we do not accept that, so long as the jury is properly warned in those terms, the judge need go any further.  As the Court of Appeal held in HKSAR v Cheng Lung Cheong Brian, unrep., CACC 174/2011 (21 March 2012) at §43, the sentence discount is not something that can be quantified with any precision.  As Mr Bruce frankly accepted, it would be speculative for the judge to indicate what range of discount or other advantage to the witness might be applicable in any given case since this would be highly dependent on the facts of the individual case which the judge would not then be apprised of.

8.Mr Bruce relied on HKSAR v Ngie Hon Miu [2012] 1 HKLRD 137 in support of the applicants’ argument but that decision turned on its unusual facts of an accomplice witness who denied he was aware of any such practice or entitlement to a sentence discount.  In those circumstances, the Court of Appeal held that the need arose to inform the jury of the practice or policy of the courts to reward accomplice witnesses with further discounts in sentence.

9.In the present case, we are satisfied the judge warned the jury adequately of the dangers of accepting PW2’s evidence.  There is no basis for suggesting that the direction constituted a substantial and grave injustice.

10.For these reasons, the application for leave to appeal was dismissed.

Mr Andrew Bruce SC, instructed by Tang and Lee, assigned by the Director of Legal Aid, for the Applicants

Mr Jonathan Tak-ho Man ADPP, of the Department of Justice, for the Respondent