LAM CHI HING v. HKSAR

FAMC000043/2003

FAMC No. 43 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 43 OF 2003 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 283 OF 2002)

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Between
LAM CHI HING Applicant
– AND –
HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent

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Appeal Committee : Mr Justice Chan, Acting CJ, Mr Justice Bokhary PJ and Mr Justice Ribeiro PJ

Date of Hearing : 4 May 2004

Date of Determination : 4 May 2004

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

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Mr Justice Chan, Acting CJ:

1. There are standard directions to be given to a jury on the caution with which they should approach identification evidence. In thiscase, the judge’s summing-up deviated from such standard directions in a number of respects. It is perfectly proper for these deviationsto be made the subject-matter of complaint before the Court of Appeal. They received careful consideration by that court, which consideredthem in the light of the summing-up as a whole, and came to the conclusion that they did not vitiate the conviction. In so doing,the Court of Appeal was performing what is quintessentially a task for an intermediate appellate court. We are not persuaded thatthere is a reasonably arguable case for saying that there is a departure from the accepted norms such as requires the interventionof the Court of Final Appeal. Nor do we see any basis for complaining that the trial judge departed from the accepted norms in givinghis directions to the jury in this case on the alibi evidence given by the applicant’s mother. So we refuse leave to appeal.

2. We would, however, observe that trial judges would generally be well advised to adhere more closely to the standard directions thanthe trial judge did in the present case.

(Patrick Chan) (Kemal Bokhary) (R.A.V. Ribeiro)
Acting Chief Justice Permanent Judge Permanent Judge

Representation:

Mr Wong Man Kit, SC (instructed by Messrs Tang, Wong & Cheung and assigned by the Legal Aid Department) for the applicant

Ms Mary Sin (of the Department of Justice) for the respondent