FAMC No. 31 of 2005
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 31 OF 2005 (CRIMINAL)
(ON APPLICATION FOR LEAVE TO APPEAL FROM
Appeal Committee: Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Ribeiro PJ
Date of Hearing: 31 May 2005
Date of Determination: 31 May 2005
D E T E R M I N A T I O N
Chief Justice Li :
1. The applicant was charged with five counts of sexual offences involving his domestic helper. He was acquitted on three counts butwas convicted of one count of rape and one count of indecent assault.
2. He did not give evidence at the trial. In relation to the rape count, the line pursued in cross-examination on his behalf was thatthe incident never occurred. In relation to the indecent assault count, the line pursued was that the complainant had consentedto the oral sex.
3. On this application for leave, his argument is in essence that the judge failed to direct the jury on the element of consent onthe rape count. In this connection, he relies on what he said to the police when cautioned in respect of rape, namely, “we didit voluntarily”.
4. The judge must of course give a fair and balanced summing up. The question is whether an arguable case has been made out that thesumming up has departed from accepted norms, constituting substantial and grave injustice.
5. Having regard to the line pursued by the defence that the rape incident never occurred, the judge had to exercise a judgment, havingthe feel of the trial, whether to draw attention to the cautioned statement, bearing in mind that doing so may undermine that defence. In these circumstances, it is not reasonably arguable that his failure to do so is a departure from accepted norms constitutingsubstantial and grave injustice.
6. Accordingly, leave to appeal is refused.
Mr James H M McGowan (instructed by Messrs Lunning & Chan, assigned by the Legal Aid Department) for the applicant
Mr D G Saw, SC and Ms Agnes Chan (of the Department of Justice) for the respondent