HKSAR v. LAU TAK MONG

CACC 337/2016

[2018] HKCA 300

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 337 OF 2016

(ON APPEAL FROM HCCC 287 OF 2015)

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J U D G M E N T

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Hon McWalters JA (giving the Judgment of the court):

1.  The applicant was convicted of unlawfully trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and was sentenced to 9 years and 6 months’ imprisonment. He subsequently applied for leave to appeal his conviction but this was refused on 6 March 2018[1].

2.  By Notice of Motion dated 13 March 2018 the applicant now applies for a certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 that there are points of law of great and general importance involved in our decision.

3.  On 19 March 2018 the Deputy Registrar (Criminal Appeals Registry) directed that the determination of this application was to be dealt with on paper with the parties filing written submissions by specified dates.  The parties subsequently filed their submissions in compliance with this direction.  This is our judgment on the application.

The points of law

4.  In his Notice of Motion the applicant asks us to certify the following points of law:

“(1) In a case (as in the present case) where the trial judge had decided that a special direction on the drawing of inferences was called for and did give such a special direction (and/or a general direction on circumstantial evidence), does the Court of Final Appeal’s decision in Nguyen Anh Nga v HKSAR (2017) 20 HKCFAR 149 lay down any general legal requirement or accepted norm that ‘there will be at least one instance in which the jurors are given directions on such reasoning that are specifically set in the context of the evidence and the arguments thereon’?

(2) In a case (as in the present case) where prosecuting counsel repeatedly suggested that the Applicant had lied on a number of collateral issues in order to escape his criminal liability for the subject offence, having regard to the reasoning of the Court of Final Appeal in Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113 and the English Court of Appeal decision in R v Anjum [2003] EWCA Crim 493, R v Rodrigues [2001] EWCA Crim 444, R v Harron [1996] 2 Cr App R 457 and R v Leroy Owen Lesley [1996] 1 Cr App R 39, is it necessary for the trial judge to give a lies direction?”

The applicant’s submissions

5.  Mr Eric TM Cheung, for the applicant submitted in respect of the first question that since the Court of Final Appeal’s decision in Nguyen Anh Nga v HKSAR[2] “there appears to be different understanding by the Court of Appeal as to what is required of trial judges when giving directions to the jury on drawing inferences in the light of that CFA decision.”  Mr Cheung asserts that the Court of Final Appeal laid down in its judgment a mandatory requirement that trial judges must, when directions on inferential reasoning are necessary, on at least one occasion in the summing-up give directions on how inferential reasoning would operate in the context of the evidence and the arguments of the parties in respect of it.

6.  In the case of this applicant Mr Cheung says that the judge rightly formed the view that a special direction on inferential reasoning was needed but, contrary to what was said by the Court of Final Appeal in Nguyen Anh Nga, failed to give a further direction on how inferential reasoning was to operate in the context of the evidence in the case and the arguments of the parties in respect of it.

7.  Mr Cheung argues that we erred in our understanding of the Court of Final Appeal’s judgment in Nguyen Anh Nga by unduly focussing on the statement in that judgment that the “adequacy of the inferences directions will fall to be assessed against the facts of each case” and, by placing undue reliance on that statement, then determining that the directions given by the judge were adequate when assessed against the facts of the applicant’s case.

8.  In respect of the second question of law Mr Cheung submitted that it is reasonably arguable that we erred in taking the view in respect of the lies relied on by the prosecution that there is nothing unusual in the collateral issues to which the lies related assuming the degree of prominence in this trial that they did.

The respondent’s submissions

9.  Ms Hermina Ng, Senior Public Prosecutor, for the respondent, submitted in respect of both points of law that both of them are solely concerned with the application of settled legal principles to the facts of the applicant’s case.  That being so the questions of the applicant do not raise points of law of great and general importance. 

Discussion

10.  We agree with Ms Ng for the respondent.  Both questions require for their answer a consideration of the facts of the applicant’s case and a determination of whether established legal principle was correctly applied in the factual context of that case.  Being case specific the questions cannot be said to raise a point of law of general importance. Nor do the questions raise a point of law involving an issue of new legal principle.

Conclusion

11.  For these reasons we refuse the applicant for a certificate.