HKSAR v. KHAW KIM SUN

CACC 309/2018

[2022] HKCA 1602

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 309 OF 2018

(ON APPEAL FROM HCCC NO 374 OF 2017)

________________________

________________________

________________________

J U D G M E N T

________________________

The Court:

1.  On 7 June 2022, the Court handed down its judgment[1] (the “Judgment”) refusing the applicant leave to appeal and dismissing his appeal against conviction for the murder of his wife and 16-year-old daughter, following a trial before Barnes J and a jury of nine. By a Notice of Motion filed on 14 June 2022, the applicant initially sought to have certified two questions of law, which were said to be of great and general importance, pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484. However, the second question was subsequently withdrawn[2]. There remains, therefore, a single question, which is said to arise from the above Judgment in these terms:

“Whether a direction that good or reliable evidence or evidence of sufficient reliability and strength is required to cast doubt on the prosecution case places a burden on the defendant to prove his innocence?”

2.  The parties have consented to this application being determined on the papers.

3.  The Court examined this argument at [183] to [188] of its Judgment and does not intent to repeat its reasoning in any detail. The Court pointed out that the Judge in her instructions was following verbatim Direction 21.2 of the Specimen Directions in Jury Trials approved for use in Hong Kong by the Hong Kong Judicial Institute, when she gave the instruction which is now impugned[3]. Not only has this formula been followed and never questioned in every trial involving circumstantial evidence in this jurisdiction since then, the same Direction has also been approved by the Court of Appeal of England and Wales in that jurisdiction in R v P[4], where Thomas LJ (as Lord Thomas CJ then was) traced the provenance of the Direction from the speech of Lord Morris of Borth-y-Gest in the celebrated decision of the House of Lords in McGreevy v Director of Public Prosecutions[5].

4.  Looking at the summing-up as a whole, the jury can have been in no doubt at all as to the correct burden and standard of proof in this case. The judge told the jury repeatedly in terms that if there was a reasonable inference to draw in the applicant’s favour, then they could not draw an adverse inference against him[6]. Shortly before sending the jury out to deliberate, she reiterated that if they were to draw an inference against the applicant, it “had to be the only reasonable inference”[7]. If there could be “another inference for him, then you cannot draw the one that is against him”[8].

5.  We do not regard this question as at all arguable and the application for a certificate is accordingly refused.