FAMC No. 39 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 39 OF 2010 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 76 OF 2009)

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

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Mr Justice Bokhary PJ:

1.  It was at an earlier stage than the Court of Appeal thought that the applicant first raised out-of court the defence which she eventually ran at trial. But we are satisfied that the misapprehension neither should have made nor in fact did make a crucial difference to the Court of Appeal’s decision.  We do not consider it reasonably arguable that the way in which the trial judge summed-up departed from accepted norms.  The question was whether the applicant was trafficking in these dangerous drugs.  It was a simple question, and it was dealt with by way of a simple and accurate direction.  The case of Li Jin relied upon by counsel for the applicant has nothing to do with circumstances like these.  As for the suggestion that the Court of Final Appeal should apply a “lurking doubt” test, it is untenable.  Counsel for the applicant cited two cases in which he says that the Court of Final Appeal applied that test.  The opposite is true, for in each the Court of Final Appeal expressly applied the “departure from accepted norms” test.  If the intermediate appellate court fails to apply the test appropriate to an intermediate appeal, there can be intervention on final appeal on the basis of that departure from accepted norms.  But if the intermediate appellate court applies the test appropriate to an intermediate appeal, the exercise will not be repeated on final appeal.

2.  There is no basis on which to grant leave to appeal to the Court of Final Appeal in the present case.  Such leave is therefore refused.