HKSAR v. LAW WAI CHOI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.28
(Criminal)

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D E C I S I O N

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Power, V.-P. (giving the decision of the Court):

The appeal involved a contention that there was a late change in direction in the nature of the prosecution case. After retiring, the jury returned and asked a question which raised a query as to whether knowledge that the dangerous drugs which were in a bag carried by the applicant might have come to him only at a time immediately before his arrest. This was never the prosecution case, which was that he was throughout a knowing courier. Further the trial judge had directed the jury upon that basis. It is the contention of Mr. Haynes, who appears for the appellant, that the jury, by their question, opened a door which was closed to them, and that they should have been so told. It is submitted that whether a judge can allow a jury to consider the evidence upon a basis not relied upon by the prosecution and not dealt with in the summing-up is a matter of grave and general public importance. The law is, however, clear on this matter. In such circumstances, it is for the Court of Final Appeal to determine whether leave should be given by it upon the basis that the Court of Appeal failed properly to apply the law resulting in a substantial and grave injustice. That being so, we refuse to certify.