IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
Coram: Hon. Power, V.-P., Rogers and Stuart-Moore, JJ.A.
Date of Hearing: 30 October 1998
Date of Decision: 30 October 1998
D E C I S I O N
Power, V.-P. (giving the decision of the Court):
The appeal involved a contention that there was a late change in direction in the nature of the prosecution case. After retiring,the jury returned and asked a question which raised a query as to whether knowledge that the dangerous drugs which were in a bagcarried by the applicant might have come to him only at a time immediately before his arrest. This was never the prosecution case,which was that he was throughout a knowing courier. Further the trial judge had directed the jury upon that basis. It is the contentionof Mr. Haynes, who appears for the appellant, that the jury, by their question, opened a door which was closed to them, and thatthey should have been so told. It is submitted that whether a judge can allow a jury to consider the evidence upon a basis not reliedupon by the prosecution and not dealt with in the summing-up is a matter of grave and general public importance. The law is, however,clear on this matter. In such circumstances, it is for the Court of Final Appeal to determine whether leave should be given by itupon the basis that the Court of Appeal failed properly to apply the law resulting in a substantial and grave injustice. That beingso, we refuse to certify.
Mr. D.G. Saw, S.C. leading Mr. Vincent Wong (D.P.P.) for the Respondent.
Mr. John Haynes assigned by D.L.A. for Applicant.
Leave to appeal by the applicant refused by Court of Final Appeal. Please refer to FAMC24/1998 dated 11 December 1998