LAW CHUNG KI v. HKSAR

FAMC No. 59 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 59 OF 2004 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 220 OF 2002)

_____________________

_____________________

______________________

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

______________________

Mr Justice Bokhary PJ:

1.  The Court of Appeal appears to have taken and acted on the view that an omission to give the sort of direction which takes its name from the decision of the English Court of Appeal in R v. Walton [2003] EWCA 3644 becomes immaterial once the jury convicts both of the accused who blamed each other in the witness-box.  But does it?  This is a question of law of great and general importance.  And it is open to reasonable argument.  There are hazards in deducing the thinking processes of jurors who have not been adequately directed.  For example, the jury’s rejection of each accused’s evidence exculpatory of himself may have been influenced by the other accused’s evidence inculpatory of him (in respect of which no Walton direction had been given).  We certify the question and grant leave to appeal to the Court of Final Appeal to pursue it.  The appeal will give the Court an opportunity to go into the whole question of the necessity for or desirability of a Walton or some such direction.

2.  Having granted leave on the question of law basis, we take the precaution, in all the circumstances, of granting leave on the substantial and grave injustice basis, too.