HKSAR v. CHUNG YUK MING

CACC 220/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 220 OF 2002 

(ON APPEAL FROM HCCC 159 of 2001)

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

1.  On 4 August 2004, we dismissed the appeal against conviction of Law Chung Ki (Law) and Chung Yuk Ming (Chung).

2.  We took the view that a failure to give a direction in accordance with the decision of R v Walton [2003] EWCA 3644 did not necessarily result in an acquittal on appeal as it depended on the facts of each case. We had set out three reasons to support our view that there was no material non-direction.

3.  On 12 January 2005, the Appeal Committee of the Court of Final Appeal had certified, on an application by Law, that the question of the need for a direction in accordance with Walton was a question of law of great and general importance. The Appeal Committee granted leave to Law on that basis and also on the substantial and grave injustice basis.

4.  Chung now seeks a similar certificate from this court.

5.  As the Appeal Committee had already formulated the proposed point of law and had certified that it was of great and general importance, we are bound to follow that decision.

6.  Mr Cheung, on behalf of the respondent does not seek to argue otherwise.

7.  We therefore grant Chung’s application and also issue a certificate to the same effect as the Appeal Committee did in relation to Law, namely “Whether an omission to give the sort of direction which takes its name from the decision of the English Court of Appeal in R v Walton [2003] EWCA 3644 becomes immaterial once the jury convicts both of the accused who blamed each other in the witness box”.