Download

Hong Kong Judgment

Court of Appeal

HKSAR v. LO WAI MING

On this page

Professional case brief

Research organized from the available case record

Source document

01

Holding and result

Ex. D1 was a mixed statement by content though defence counsel had invited the judge to treat it as wholly exculpatory; that invitation meant no prejudice arose from the judge's direction on Ex. D1. Separately, prosecuting counsel's express suggestion that the co-accused Lau had pleaded guilty and acted together with the appellant, together with oblique references to Lau's statements, was highly prejudicial and amounted to a material irregularity; the court could not be satisfied under s.83(1) CPO that the jury would inevitably have convicted, so the conviction was quashed and a retrial ordered.

Court disposition

appeal allowed; conviction quashed; retrial ordered on a fresh indictment; costs awarded to appellant

Orders

  • Conviction quashed
  • Appellant to be retried on a fresh indictment
  • Costs awarded to the appellant in this court and the court below, to be taxed if not agreed

02

Material facts

Parties

LO Wai-ming

Appellant Counsel: Mr James H.M. McGowan, instructed by Messrs Jal N. Karbhari & Co.

HKSAR (Prosecution)

Respondent Counsel: Mr David C. Leung, SGC of Department of Justice

LAU Chun-shu

Co Accused

Amounts and remedies

  • Crystalline Solid Weight Grams: 982.73
  • Methamphetamine Weight Grams: 980.33
  • Original Sentence Years: 19
  • Cash Found Total: HKD 32,000

03

Procedural history

  1. Posture

    Criminal Appeal / Hearing of Appeal (leave Application Treated as Appeal); Conviction Quashed; Retrial Ordered

04

Questions and positions

Legal issues

Party arguments

Applicant
The appellant submitted the judge misdirected the jury by treating Ex. D1 as wholly exculpatory when it was a mixed statement containing inculpatory admissions; alternatively the judge should have directed the jury to disregard prosecuting counsel's improper suggestion that Lau had pleaded guilty and had acted together with the appellant, and the combined prejudice required quashing the conviction.
Respondent
The respondent (Department of Justice) submitted Ex. D1 was properly treated as exculpatory in light of the defence counsel's stated use of the interview and that no material prejudice arose from the judge's direction; regarding the prosecuting questions, the respondent contended a direction might have been unnecessary and that calling attention to the matter could have revived the issue, but did not demonstrate the proviso would necessarily be displaced.

05

Court’s reasoning

  1. 01

    HKSAR v. Yuen Man Tung (2004) 3 HKC 279

    A statement is to be characterised by its contents at the time it is made; if it contains admissions significant to issues in the case it is a mixed statement

  2. 02

    R. v. Garrod [1997] Crim. 445 (Evans LJ)

    Where a statement contains admissions capable of adding weight to the prosecution case it should be regarded as mixed rather than wholly exculpatory

  3. 03

    Criminal Procedure Ordinance, Cap. (s.83(1))

    The proviso in s.83(1) Criminal Procedure Ordinance may save a conviction despite trial irregularity but cannot be applied where the appellate court is not satisfied the jury would inevitably have convicted

  4. 04

    R. v. Gallagher [1974] 59 Cr.App.R. 239; R. v. Couzens [1992] Crim. 882; R. v. Wilmot [1989] 89 Cr.App.R. 341

    Cross-examination or comment on why a defendant did not call a witness can be objectionable and should be approached with circumspection; adverse inferences about absence of defence witnesses are only permitted in limited circumstances

06

Ratio, limits and disposition

Ratio decidendi

Ex. D1 was a mixed statement by content though defence counsel had invited the judge to treat it as wholly exculpatory; that invitation meant no prejudice arose from the judge's direction on Ex. D1. Separately, prosecuting counsel's express suggestion that the co-accused Lau had pleaded guilty and acted together with the appellant, together with oblique references to Lau's statements, was highly prejudicial and amounted to a material irregularity; the court could not be satisfied under s.83(1) CPO that the jury would inevitably have convicted, so the conviction was quashed and a retrial ordered.

Obiter and limits

  • Prosecutors should be circumspect in cross-examining a defendant about why a particular witness is not called and should avoid putting inadmissible facts to the jury
  • It will be exceptional for an appellate court to find prejudice from a judicial direction when that direction was expressly or impliedly requested by defence counsel
  • In some cases the appropriate remedy for prejudicial prosecutorial conduct may be discharge of the jury rather than a curative direction

Court disposition

appeal allowed; conviction quashed; retrial ordered on a fresh indictment; costs awarded to appellant

  • Conviction quashed
  • Appellant to be retried on a fresh indictment
  • Costs awarded to the appellant in this court and the court below, to be taxed if not agreed

Source and reliance status

Court of Appeal · 23 May 2007

This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.

Judgment reading view

Judgment text

The complete available source text.

Source document

Full judgment text is not available for this record.

Use the source document link when available.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

R. v. Garrod [1997] Crim. 445

Case cited

HKSAR v. Yuen Man Tung (2004) 3 HKC 279

Case cited

R. v. Gallagher [1974] 59 Cr.App.R. 239

Case cited

R. v. Couzens [1992] Crim. 882

Case cited

R. v. Wilmot [1989] 89 Cr.App.R. 341

Case cited

Dangerous Drugs Ordinance, Cap. 134

Legislation

Legislation referenced in the available case record.

Criminal Procedure Ordinance s.83(1)

Legislation

Legislation referenced in the available case record.

Case-aware research

Ask AI about this case

The judgment and available research above are public. New questions open in a separate private conversation grounded in this case.

About this LexChat collection

This page organizes the available case record for research. Verify quotations, current status, and subsequent treatment against the source document. Corrections can be reported to hello@esheria.ai.

Legal information, not legal advice. Research summaries do not replace the judgment.