LEUNG FEI WAH v. HKSAR

FAMC No. 32 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 32 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 311 OF 2002)

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Between:

  LEUNG FEI WAH Applicant
  and  
  HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent

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Appeal Committee: Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Chan PJ

Date of Hearing: 1 September 2005

Date of Determination: 1 September 2005

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DETERMINATION

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Mr Justice Bokhary PJ:

1. We do not think that there is anything in the first two grounds. The jury would know from the general directions on the burdenand standard of proof that they should acquit if they thought that the applicant’s out-of-court denials were or might be true. As for a lies direction, none was needed. There were no admitted lies. And the prosecution had merely attacked the out-of-courtdenials ¾ as they naturally had to since they were alleging that the applicant was guilty.

2. The third ground reads: “The learned Judge erred in directing the jury that if the jury found the Applicant guilty of robberyin count l then the jury could not find the Applicant not guilty of indecent assault in count 2.” One sees from the summing-upthat the judge did direct the jury as complained of in this ground. It is true that an acquittal of indecent assault under count2 would have been surprising if the jury had convicted of robbery under count 1. After all the two offences were alleged by thesame eye-witness/alleged victim in respect of the same occasion. But it is at least reasonably arguable that directing a jury toconvict is simply not permissible under any circumstances – not even where an acquittal seems perverse to the judge. Relevant inthis regard is the House of Lords’ decision in R v. Wang [2005] 1 All ER 782. In any event, we would not preclude an argument that an acquittal under count 2 would not have been perverse (albeit surprising)upon a conviction under count 1.

3. We grant leave to appeal to the Court of Final Appeal against, but only against, the conviction for indecent assault under count 2.

(Andrew Li)
Chief Justice
(Kemal Bokhary)
Permanent Judge
(Patrick Chan)
Permanent Judge

Mr Phillip Ross (instructed by Messrs Reimer & Partners) for the applicant

Mr Cheung Wai-sun (of the Department of Justice) for the respondent