HKSAR v. C.H.P. AND ANOTHER

CACC 89/2021, [2023] HKCA 836

On Appeal From [2021] HKCFI 1069

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 89 OF 2021

(ON APPEAL FROM HCCC NO 28 OF 2020)

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.  There are said to be four points of law of great and general importance arising out of the judgment of this Court handed down on 17 February 2023. The first is a complaint that the judge failed to give an eponymously named Kevin Brown^[1] direction when he ought to have done so (“the first point”). Secondly, it is said that the judge failed to give an adequate direction as to the causal relationship between the sequence of events and the cause of Z’s death (“the second point”). Thirdly, it is claimed that conducting the trial in English was unfair to the applicants (“the third point”). Fourthly, it is said that the judge failed to give a clear direction as to the applicant’s knowledge of the involution of Z’s thymus and its consequences (“the fourth point”). Although A1 pursues all of the above four matters, A2 argues only the first point. However, we have examined the validity of the four matters in relation to both applicants.

2.  We may dispose, firstly, of the third point raised.  This issue was never advanced by either of the applicants’ counsel at the appeal, nor has any indication been given now as to how specifically it was unfair for the applicants to have had the case heard in English when they were represented by experienced counsel.  It should be noted that the judge made a considered decision to have the trial heard in English, having received submissions from the parties.  Moreover, all civilian witnesses gave evidence in Cantonese, which was translated in open court, while the two expert pathologists gave evidence in English, which was also translated for the applicants’ benefits.  We note that technical terms were set out in both English and Chinese in the Admitted facts, at [96]^[2] and also at [95]^[3], while aspects of the applicants’ out-of-court statements to the police were also recorded in both languages, at [80]-[83]^[4].  This point is not reasonably arguable.

3.  The first and second points of law were argued before the Court as grounds of appeal and we do not intend to repeat our reasoning.  Suffice it to say, it is our view that the first point does not arise at all, while the second is not reasonably arguable.

4.  As for the fourth point, this too was not argued before this Court.  That is not surprising given the judge’s explicit (and favourable) directions that there was no evidence that either applicant knew of the involution of Z’s thymus^[5]; and that the jury were to disregard the evidence of the involution of her thymus when considering the issue of intent^[6]. This point is not reasonably arguable.

5.  We accordingly refuse to certify any of the points raised under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.

[1]   R v Kevin Brown (1984) 79 Cr App R 115.

[2]   Appeal Bundle (“AB”), pp 40-42.

[3]   AB, pp 38-39.

[4]   AB, pp 35-36.

[5]   AB, p 168L-P.

[6]   See AB, p 63G-M.