HKSAR v. KWOK CHI WAI

CACC 300/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 300 OF 2003

(ON APPEAL FROM HCCC NO. 238 OF 2002)

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J U D G M E N T

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Hon Stock JA:

1. This is an application for leave to appeal against a conviction. The applicant was found guilty on 24 June 2003 of the offence of rape. This was the second trial he had faced. I am told by Ms Rosaline Leung who appears on behalf of the respondent that at the previous trial the jury could not agree. The verdict in this particular trial was a majority verdict of 5-2 arrived at after some considerable time of deliberation, and not long after the learned trial judge had told the jury that should they be unable to reach a verdict, accommodation would be provided overnight.

2. The applicant appears before me today in person and has sought to take me to a large number of matters in the summing-up. I have not heard everything he has had to say because there appears to me to be one matter he has mentioned which of itself suffices to warrant the grant of leave, although this does not preclude whomsoever in future advises him from raising any other proper grounds. The matter that seems to me to warrant investigation by a full court is the judge's direction at pages 18L-Q and 19S-20A, the direction by which the judge told the jury that the verdict had to be at least one of five-to-two, and that four-three was not a verdict and, in particular, the direction: "It has got to be unanimous, or six-to-one or five-to-two," without intimating to the jury what the position would be should four agree and three disagree with a particular conclusion.

3. Accordingly, I shall grant the applicant leave to appeal against conviction. He has already been refused legal aid but I shall exercise the power in this Court to grant him legal aid for the purpose of this appeal. I emphasize to the applicant that the grant of leave is merely an intimation that there is a matter worthy of further consideration and that he is not to assume that he will necessarily be successful.