OR CHUNG YEUNG v. HKSAR

FAMC No. 4 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 4 OF 2005 (Criminal)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC No. 180 of 2003)

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Between:

  OR CHUNG YEUNG Applicant
  and  
  HKSAR Respondent

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

Date of Hearing: 18 February 2005

Date of Determination: 18 February 2005

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

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Mr Justice Ribeiro PJ:

1. The applicant was convicted after trial of raping a domestic helper employed by him. He gave evidence raising a defence of consent,alleging that he had had repeated consensual sexual relations with her. He was convicted by the jury and sentenced to 6 years’imprisonment. The Court of Appeal refused leave to appeal. He now applies for leave to appeal on the substantial and grave injusticeground.

2. He seeks to argue that Deputy High Court Judge Pang gave a lies direction which had the effect of misdirecting the jury as to theproper approach to the defence evidence. As the respondent accepts, this was a direction that was inappropriate in the context ofthis case and should not have been given. However, the complaint is not that such a direction was given. It is that the judge toldthe jury that if they found that the defendant had told lies, they should concentrate only on such evidence as they found was true. It is said that this amounted to telling them that they should ignore evidence given by the defence even if they thought such evidencemay be true.

3. However, as the respondent points out, the judge in fact directed the jury that it was for the prosecution to prove that the applicant’sevidence was false, failing which they should acquit him. This, it was argued, necessarily amounted to a direction to the jury thatif they thought his evidence might be true, they had to acquit. We agree and consider that there is no substance in this groundof appeal.

4. A supplementary ground of appeal was sought to be raised regarding the directions given on unanimous and majority verdicts. Inthis context, the judge told the jury that a 4:3 verdict was not an acceptable verdict. This was a point not raised in the Courtof Appeal. We are not prepared to entertain it. We would only add that there is no basis for suggesting that anything said by thejudge in relation to what constitutes a verdict in law can be construed as putting pressure on the jury or otherwise underminingtheir verdict.

5. The application is therefore refused.

(Kemal Bokhary) (Patrick Chan) (R A V Ribeiro)
Permanent Judge Permanent Judge Permanent Judge

Mr Wong Man Kit SC and Ms Gekko SY Lan (instructed by Messrs Li, Wong & Lam, assigned by Legal Aid Department) for the applicant

Mr Cheung Wai Sun (of the Department of Justice) for the respondent