LEUNG FEI WAH v. HKSAR

FAMC No. 32 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 32 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 311 OF 2002)

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DETERMINATION

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Mr Justice Bokhary PJ:

1.  We do not think that there is anything in the first two grounds.  The jury would know from the general directions on the burden and standard of proof that they should acquit if they thought that the applicant’s out-of-court denials were or might be true.  As for a lies direction, none was needed.  There were no admitted lies.  And the prosecution had merely attacked the out-of-court denials ¾ as they naturally had to since they were alleging that the applicant was guilty.

2.  The third ground reads: “The learned Judge erred in directing the jury that if the jury found the Applicant guilty of robbery in count l then the jury could not find the Applicant not guilty of indecent assault in count 2.”  One sees from the summing-up that the judge did direct the jury as complained of in this ground.  It is true that an acquittal of indecent assault under count 2 would have been surprising if the jury had convicted of robbery under count 1.  After all the two offences were alleged by the same eye-witness/alleged victim in respect of the same occasion.  But it is at least reasonably arguable that directing a jury to convict is simply not permissible under any circumstances - not even where an acquittal seems perverse to the judge.  Relevant in this regard is the House of Lords’ decision in R v. Wang [2005] 1 All ER 782.  In any event, we would not preclude an argument that an acquittal under count 2 would not have been perverse (albeit surprising) upon a conviction under count 1.

3.  We grant leave to appeal to the Court of Final Appeal against, but only against, the conviction for indecent assault under count 2.