WONG TAK FAI v. HKSAR

FAMC No. 72 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 72 OF 2008 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 64 OF 2008)

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

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Chief Justice Li:

1.  On 28 January 2008, the applicant was convicted by a majority verdict of 6 to 1 of one count of rape.  He was sentenced to 4 ½ years imprisonment.  On 19 September 2008, the Court of Appeal dismissed his appeal against conviction and refused his application to certify that two points of law of great and general importance are involved in its decision.

2.  The facts are clearly set out in the judgment of the Court of Appeal.  The fact that sexual intercourse had taken place was not disputed.  As Tang VP stated in the judgment of the Court of Appeal, the issues at the trial were “whether it was consensual and if not, whether the applicant genuinely believed the complainant was consenting.”  The applicant did not testify at trial.

3.  The applicant seeks leave to appeal out of time on both the point of law limb and the substantial and grave injustice limb.  Ms Panesar for the applicant has said everything which could be said on his behalf.  For the injustice limb, three grounds are relied on:

(1)  The applicant was convicted by a jury which did not understand the Judge’s direction about the definition of “genuine belief” and “definition of consent if there was no indication”.  There is a real risk of miscarriage of justice in that the jury’s verdict was rendered as a result of the overnight direction given by the Judge.

(2)  The directions on the applicant’s failure to testify at trial undermined his right to silence.

(3)  The directions on the assessment and treatment of the applicant’s mixed statement given under caution deprived him of an opportunity to have his exculpatory answers fairly assessed by the jury.

As to the point of law limb, the applicant submits that the appropriateness of the directions to the jury in (2) and (3) gives rise to points of law of great and general importance.

4.  The Court of Appeal held that the directions complained of concerning the right of silence where the applicant did not testify at trial “are impeccable”.  The Court of Appeal was plainly right in this conclusion and there is no reasonable argument to the contrary.

5.  The applicant’s complaint concerning the directions on the mixed statement was not advanced as a separate ground in the Court of Appeal.  They are clearly appropriate and there is no reasonable argument that they are not.

6.  As to the applicant’s remaining ground referred to above, this is based on the events between the giving of the overnight direction and the delivery of the verdict which are set out in the Court of Appeal’s judgment (at paras 40 to 45).  In brief, after the Judge had given the overnight direction, the foreman indicated that the jury had two questions.  Pursuant to the Judge’s request, they were put into writing.  When the Judge resumed the hearing to give further directions in response to them, the jury informed the court that they had already reached a verdict.  The Judge nevertheless proceeded to give the further directions.  The Judge then asked the jury if they wished to retire further to consider their verdict.  Without further deliberation, the foreman informed the Judge that they had their “verdict ready”.  When the Judge further asked if there was any need for them to further retire, the foreman said there was “no need”.  The Judge then proceeded to take the verdict from the jury.

7.  In relation to this ground, the applicant does not suggest that the Judge’s overnight direction and her further directions were deficient.  The Court of Appeal dismissed this ground.  In our view, the Court of Appeal was plainly right and there is no reasonable argument to the contrary.  As Tang VP observed:

“a jury must be given credit for its ability to apply commonsense to the directions given to them by the judge.  I would add that it must be given credit for its ability to do its duty to return a true verdict according to the evidence.”

8.  Accordingly, the application for leave and for extension of time is dismissed.