LAU HON KEUNG v. SECRETARY OF JUSTICE

CACC156/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 156 OF 2009

(ON APPEAL FROM DCCC NO. 1280 OF 2005)

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J U D G M E N T

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Hon Lunn J (giving the judgment of the Court) :

1.  There is before the court an application pursuant to section 32 Hong Kong Court of Final Appeal Ordinance, Cap. 484 (“the Ordinance”) that this court certify that there are three points of law of great and general public importance involved in the judgment of this court in Criminal Appeal No. 156 of 2009, delivered on 11 May 2010.

2.  In that judgment this court allowed an appeal by the respondent against the acquittal of the applicant following a ruling of no case to answer in respect of two of the charges, namely Charges 4 and 7.  We ordered that the trial be resumed before the trial judge but, given that he had since retired and in the event that his appointment as a deputy judge was not possible, in the alternative a re-trial. 

Questions of law

3.  For the applicant Mr Jenkyn-Jones has identified three questions, which he submits pose points of law of great and general public importance arising from the judgment.  

Question 1 : Does section 84 of the District Court Ordinance permit an appeal by way of case stated against a judge’s order of acquittal following a ruling of no case to answer “… where the ruling is based on an evaluation and assessment of the evidence available to the prosecution at the conclusion of its case but is not dependent on any specific (and incorrect) findings of law leading to the ruling”?

Question 2 : Does a direction by this court to a trial judge to find a case to answer and to continue the trial amount to a misdirection in law in that it “… pre-determines that a conviction will be non-appealable”?

Question 3 : Is it a misdirection in law to invite a judge to infer that because a person is a signatory to cheques in respect of a business that can provide positive evidence that he was in fact aware of any illicit activities in the business.

As to question 1

4.  The issue identified and posed in question 1 is wholly misconceived, as is Mr Jenkyn-Jones’s submission that the requirement in section 84 of the District Court Ordinance, that the appeal “… shall rely on matters of law only ...”, renders reliance on the section inappropriate where the decision is based upon “a general appraisal and evaluation of evidence in general”.  It is trite law that the determination by a judge at the conclusion of the prosecution case that a defendant has no case to answer is a matter of law.  See the judgment of this court in Attorney-General v Yau Ka Ping (1977) HKLR 76 at 80, cited with approval by this court in Attorney-General v Li Fook Shiu (1990) 1 HKC 1 at 10 A-B, and the judgment of the Privy Council in the Director of Public Prosecutions v Varlack [2008] UK PC 56 at paragraph 22. 

5.  As noted at paragraph 46 of the judgment of this court, in his ruling of no case the judge did not subject the evidence, other than that of the undercover police officers, to any consideration at all let alone to the required evaluation and analysis. 

6.  In any event, the issue of whether or not an appeal by way of case stated was permitted in relation to the judge’s ruling was not an issue before this court in the appeal.  In consequence, it was not addressed in the judgment.  Accordingly, it was not a point “involved in the decision”, as required by section 32(2) of the Ordinance. 

As to question 2

7.  Very obviously, the determination of this court that the applicant has a case to answer in respect of Charges 4 and 5 does not render a subsequent conviction by the trial judge of the applicant on either or both of those charges “non-appealable”.  Firstly, that determination was made at the end of only the prosecution case.  If the trial resumes before the same trial judge, the applicant may determine to give and/or call evidence.  Secondly, even if no evidence is called in the defence case, it remains for the judge to make primary findings of fact and to determine what, if any, inferences he draws therefrom.  All such findings and determinations are susceptible to challenge on appeal.  

As to question 3

8.  In determining what, if any, inferences to draw from evidence that the applicant was a signatory to a large number of cheques drawn in respect of the business a judge would necessarily have to have regard to all the other primary findings of fact and inferences he draws from all of the evidence. 

Conclusion

9.  The submissions advanced by Mr Jenkyn-Jones are utterly bereft of any merit whatsoever.  No issues of law of great and general public importance arise and we decline to so certify.