HKSAR v. RAMAN KAPUSAMY

CACC 32/2020

[2023] HKCA 1255

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 32 OF 2020

(ON APPEAL FROM HCCC NO 126 OF 2019)

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JUDGMENT

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Hon M Poon JA (giving the Judgment of the Court)

1.  The applicant was convicted of one count of trafficking in a dangerous drug, namely, 2,956 grammes of methamphetamine hydrochloride (“Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134) and was sentenced to 26 years’ imprisonment. His application for leave to appeal his conviction was refused and appeal dismissed on 9 March 2023. His application for leave to appeal his sentence was heard on 16 August 2023 with judgment reserved.

2.  By a Notice of Motion dated 19 July 2023, the applicant now applies for a certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, that there are points of law of great and general importance involved in our decision.

3.  Both parties have consented to this application to be determined on the papers.  We have received written submissions from the applicant and the respondent, and a reply to the respondent’s submissions from the applicant.

4.  The two questions sought to be certified are framed in the following terms:

“Question 1: Whether or not, the ultimate responsibility is on a trial judge to give a lies direction to ensure a fair trial, irrespective of Defence Counsel’s request not to have one placed before the jury.

Question 2:      To what extent a tactical error of a competent Counsel, which leads to, or may lead to a miscarriage of justice should be disposed of as preventing a ground of appeal being advanced in light of Chong Ching Yuen v HKSAR (2004)7 HKCFAR 126.”

The applicant’s submissions

5.  In relation to Question 1, counsel for the applicant submitted that prosecuting counsel, in her closing address, had remarked that the applicant’s lies about the keys was due to a realization of his guilt, which went further than a mere attack on his credibility.  It was thus incumbent upon the trial judge, in ensuring a fair trial, to override defence counsel’s argument against a lies direction.

6.  The applicant conceded that the law in relation to Question 2 is now settled and articulated before the Court and does not involved a point of great and general importance.

The respondent’s reply

7.  The respondent took issue with the delay of more than four months in the present application and objected to the application for a certificate out of time.  In any event, it was submitted that the view of the trial judge that the circumstances of the present case did not call for a lies direction was supported on appeal.  Question 1 simply does not arise.

8.  Likewise, the present appeal never encompassed the issue of tactical error made by trial counsel, only that appellate counsel took a different view from that of his predecessor. The law in that area was settled in Chong Ching Yuen.

Discussion

9.  There is a delay in making the present application, which is not insubstantial. It was explained that leave was originally sought on the second limb (grave and substantial injustice) with the Court of Final Appeal and it was not until later that questions of law were identified.  It was submitted that no prejudice was caused.

10.  We set out the chronology as follows:

9 March 2023	Judgment handed down by the Court
20 April 2023	Application for legal aid refused
8 May 2023	A certificate by counsel provided to by the Legal Aid Services Council suggesting to rely on the grave injustice limb on the issue of law as presently stated. The Legal Aid Department held a different view.
12 June 2023	Applicant reapplied for legal aid
21 June 2023	Legal aid granted
6 July 2023	Application for leave on the second limb filed
13 July 2023	Applicant directed by Registrar of the Court of Final Appeal to consider whether a certificate on the first limb should be obtained from the Court
20 July 2023	Notice of Motion for certificate to CFA filed
16 August 2023	Appeal against sentence heard by the Court Judgment reserved

11.  It would seem to us that the issues of law which are stated to be of great and general importance were not identified by counsel representing the applicant at the appeal immediately after our judgment was handed down.  A choice was made to rely on the second limb about two months later instead which contributed to the delay.  Whilst such delay is deprecated, we have nonetheless considered this application.  Now that counsel had conceded that the law in relation to Question 2 is well-settled, we would focus on dealing with Question 1.  We conclude that Question 1 does not satisfy the criteria for certification under s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.

12.  The applicant rightly pointed out that this Court identified two issues on appeal[1]:

(1)  whether a lies direction was required in view of prosecuting counsel’s remarks in the closing address in relation to the keys;

(2)  The position an appellate court should take when appellate counsel takes a stance directly contrary to that of his predecessor in respect of legal directions to the jury and what prerequisites, if any, should be satisfied, before the appellate court would entertain such a ground.

13.  At the appeal hearing, Mr Boyton, acting for the applicant, made it plain that he was not going so far as to allege incompetency of trial counsel[2].  His stance was that the grounds should still be entertained on a divergence of views provided that the Court is satisfied that due to the failure to give a lies direction justice miscarried.  Therefore, our concern was whether the circumstances of the case warranted a lies direction.  This we had canvassed at length and we came to the view that the judge was correct in not giving a lies direction[3].  Since there was no need to give such a direction, there was no miscarriage of justice.

14.  The appeal never turned on the issues framed in Question 1.  The Court was not required to make a finding as to whether the trial judge should override trial counsel’s insistence against a lies direction.  This was not a case that the judge acceded to the request of defence counsel and failed to ensure a fair trial. The judge considered the matter and came to the view that there was no such need.  We examined the evidence, prosecution counsel’s closing submission and the judge’s summing up and agreed with the decision of the judge.

Conclusion

15.  The appeal before us concerned the application of a well settled legal principle.  The question cannot be said to raise points of great and general importance.  The Court declines to certify the questions posed.

[1] [2023] HKCA 10, at paragraph 20

[2] [2023] HKCA 10, at paragraph 29

[3] [2023] HKCA 10, at paragraphs 30-35