HKSAR v. YUEN KWAI CHOI

CACC 166/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 166 OF 2000

(ON APPEAL FROM HCCC 328 OF 1999)

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D E C I S I O N

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Mayo VP (giving the decision of the Court):

1. This is an application for a certificate that a point of law of great and general importance arises on this appeal pursuant to section 32 of the Hong Kong Court of Final Appeal Ordinance Cap. 484.

2. The point of law is set out in the Notice of Motion and is as follows:

"Whether the Court of Appeal should (make use of) 'and or apply' the proviso under section 83(1) of the Criminal Procedure Ordinance, Cap. 221 in a situation where:

(i) There has been a material irregularity such as the omission of a 'full lies' direction by the trial judge;

(ii) In spite of the material irregularity (the jury not having the benefit of hearing a 'full lies' direction) there was only a 5 - 2 majority verdict against the Applicant by the jury;

(iii) The Defendant (Applicant) gave evidence denying knowledge of the dangerous drugs found in his vehicle thus making his credibility a fundamental issue in the trial.

or should the proviso only be reserved for cases where the material irregularity in the trial or the defect in the summing-up has been of a technical nature, and which do not turn on the view which the jury may have taken of the credibility of the defendant."

3. The law in relation to the application of the proviso is well settled.

4. None of the matters referred to in the Notice of Motion involve any novel issue such as to enable us to grant the certificate sought.

5. It is also pertinent to observe that even counsel for the applicant accepts that Keith JA erred in his dissenting judgment. In addition to this this application is long out of time. No satisfactory explanation has been forthcoming to explain the non-compliance with the requirements. The reasons for the necessity for applications being made timeously were referred to in Choi Wing Man [1999] 2 HKC 282.

6. For these reasons, the application is dismissed.