HKSAR v. LEUNG SUN KEUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 17
(Criminal)

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D E C I S I O N

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Mayo, J.A. (giving the decision of the Court):

1. The Applicant was convicted of rape after a trial before Deputy Judge Suffaid as he then was. He had originally also been charged with administering drugs to obtain or facilitate intercourse. At the conclusion of the prosecution case the Judge ruled that there was a case to answer on the rape count and that there was no case to answer on the s.121 charge.

2. The 2nd ground of appeal before us read:

"2. The learned trial judge erred in not discharging the jury from trying the first count of rape after the same jury had (as directed) returned a verdict of not guilty on the second count of administering drugs to obtain or facilitate intercourse, when the prosecution case against the Appellant was and remained that he had administered drugs to the victim so as to obtain or facilitate intercourse with her (i.e. that he was guilty on the second count) and having thus rendered her unable to give valid consent proceeded to have sexual intercourse with her."

3. For the reasons we gave in our judgment we dismissed this ground of appeal.

4. Put very shortly we decided on the basis of the D.P.P. v. Humphrys [1977] AC 1 and the R v. YEUNG Chi-sing [1993] 1 HKCLR 95 that the circumstances of each of the charges in the present case were sufficiently separate and distinct that it was possible for the rape count to proceed before the jury notwithstanding the fact that the Judge had directed them to acquit the Applicant on the s.121 charge. However the law on this subject is not entirely clear and straight forward.

5. Mr. Hoosen for the Applicant has requested us to certify under s.32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 that a point of law of great and general importance arises in this case. He has framed the point of law in this way:

"Where an accused has been found not guilty of an offence (following a ruling of no case) on technical grounds is the evidence showing that he committed the acts alleged in that offence (and is therefore in fact guilty of that offence) admissible against him in respect of another offence?"

6. We are satisfied that a point of law of great and general importance arises and accordingly we issue a certificate to this effect.