WONG SHUN WAH AND ANOTHER v. HKSAR

FAMC No. 75 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 75 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 492 OF 2003)

_____________________

_____________________

______________________

D E T E R M I N A T I O N

______________________

Mr Justice Bokhary PJ:

1.  These two applicants were convicted on a count which alleged a conspiracy between only two conspirators.  The jury asked the judge whether they could “conclude that one of them is guilty, whereas the other is not guilty”.  The judge answered “No”.  But s.159E(4) of the Crimes Ordinance, Cap. 200, provides that:

“A person shall not be entitled to be acquitted of, or to have quashed his conviction for, the offence of conspiracy for the reason only that the only other person or persons with whom he is alleged, in the indictment or charge sheet, to have entered into that conspiracy are or have been acquitted.”

2.  The Court of Appeal considered the English Court of Appeal’s decision in R v. Longman and Cribben (1981) 72 Cr App R 121 where this was said at p.125:

“There will, however, be cases where the evidence against A and B is of equal weight or nearly so. In such a case there may be a risk of inconsistent verdicts, and the judge should direct the jury that because of the similarity of the evidence against each, the only just result would be the same verdict in respect of each: that is to say, both guilty or both not guilty. He must be careful to add, however, that if they are unsure about the guilt of one, then both must be found not guilty.”

3.  Our Court of Appeal did not feel troubled by the judge answering the jury’s question “No” without adding a warning that they must acquit both if unsure about the guilt of one.  In this connection the Court of Appeal took comfort in the judge’s general directions to the jury on the burden and standard of proof, the law under which a conspiracy requires at least two persons, and the requirement of separate consideration of the case for and against each accused.  But it must be remembered that the jury asked their question after receiving those general directions.  The question showed that the jury contemplated convicting one applicant while feeling unsure about the other’s guilt and therefore acquitting him. 

4.  In our view, it is reasonably arguable that substantial and grave injustice was occasioned by the judge answering the jury’s question “No” without adding a warning that they must acquit both if unsure about the guilt of one.  On this basis leave would be appropriate on the substantial and grave injustice ground if one were simply to accept the Longman and Cribben approach.  Moreover the correct approach under s.159(E)(4) of the Crimes Ordinance is a point worthy of the Court of Final Appeal’s attention.  We so certify, and grant leave also on the point of law of great and general importance ground.  Leave to appeal is therefore granted under both limbs of s.32(2) of the Court’s statute.