HKSAR v. LO WAI MING
- Citation
- HKSAR v. LO WAI MING
- Status
- Judgment
- Jurisdiction
- Hong Kong
- Court
- Court of Appeal
- Decision
- 23 May 2007
- Posture
- Criminal Appeal / Hearing of Appeal (leave Application Treated as Appeal); Conviction Quashed; Retrial Ordered
- Case number
- CACC530/2005
- Language
- English
More details
- Court
- Court of Appeal
- Decision
- 23 May 2007
- Posture
- Criminal Appeal / Hearing of Appeal (leave Application Treated as Appeal); Conviction Quashed; Retrial Ordered
- Case number
- CACC530/2005
- Language
- English
On this page
Professional case brief
Research organized from the available case record
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 JusticeLAU Chun-shu
Co AccusedAmounts 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
Posture
Criminal Appeal / Hearing of Appeal (leave Application Treated as Appeal); Conviction Quashed; Retrial Ordered
04
Questions and positions
Legal issues
- 01
Whether the video-recorded interview (Ex. D1) was wholly exculpatory or a mixed statement
- 02
Whether the trial judge's direction treating Ex. D1 as wholly exculpatory caused prejudice
- 03
Whether prosecuting counsel's questions revealing that a co-accused had pleaded guilty and implying joint guilt were a material irregularity
- 04
Whether the proviso in s.83(1) Criminal Procedure Ordinance applies to save the conviction
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
Legal principles
- 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
- 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
- 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
- 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
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