OR CHUNG YEUNG v. HKSAR

FAMC No. 4 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 4 OF 2005 (Criminal)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC No. 180 of 2003)

_______________________

_______________________

_______________________

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

_______________________

Mr Justice Ribeiro PJ:

1.  The applicant was convicted after trial of raping a domestic helper employed by him.  He gave evidence raising a defence of consent, alleging that he had had repeated consensual sexual relations with her.  He was convicted by the jury and sentenced to 6 years’ imprisonment.  The Court of Appeal refused leave to appeal.  He now applies for leave to appeal on the substantial and grave injustice ground.

2.  He seeks to argue that Deputy High Court Judge Pang gave a lies direction which had the effect of misdirecting the jury as to the proper approach to the defence evidence.  As the respondent accepts, this was a direction that was inappropriate in the context of this case and should not have been given.  However, the complaint is not that such a direction was given.  It is that the judge told the jury that if they found that the defendant had told lies, they should concentrate only on such evidence as they found was true.  It is said that this amounted to telling them that they should ignore evidence given by the defence even if they thought such evidence may be true.

3.  However, as the respondent points out, the judge in fact directed the jury that it was for the prosecution to prove that the applicant’s evidence was false, failing which they should acquit him.  This, it was argued, necessarily amounted to a direction to the jury that if they thought his evidence might be true, they had to acquit.  We agree and consider that there is no substance in this ground of appeal.

4.  A supplementary ground of appeal was sought to be raised regarding the directions given on unanimous and majority verdicts.  In this context, the judge told the jury that a 4:3 verdict was not an acceptable verdict.  This was a point not raised in the Court of Appeal.  We are not prepared to entertain it.  We would only add that there is no basis for suggesting that anything said by the judge in relation to what constitutes a verdict in law can be construed as putting pressure on the jury or otherwise undermining their verdict.

5.  The application is therefore refused.