Hong Kong Case Law: Decisions & Judgments | LexChat

Hong Kong Case Law

Proviso (s.83 criminal procedure ordinance)

  • 31 Jul 2025

    HKSAR v. LAI KAN YAU

    Citation
    [2025] HKCA 719
    Court
    Court of Appeal
    Case number
    CACC177/2021

    Admissible fresh call records proved the appellant did receive a return call from the deceased and therefore the prosecution's allegation that the appellant lied on that pivotal point constituted a material irregularity affecting his credibility and the safety of the conviction; although defence counsel's conduct was not found to be flagrantly incompetent, the fresh evidence required quashing the murder conviction; the proviso could not sensibly be applied to uphold the conviction and the conviction was quashed and a verdict of acquittal ordered under s.83(3).

  • 28 Feb 2006

    LEUNG FEI WAH v. HKSAR

    Citation
    LEUNG FEI WAH v. HKSAR
    Court
    Court of Final Appeal
    Case number
    FACC9/2005

    The trial judge misdirected the jury by indicating a guilty verdict on Count 1 required a guilty verdict on Count 2, but on applying the proviso the Court concluded a hypothetical reasonable jury properly directed would inevitably have convicted the appellant of indecent assault; accordingly the appeal is dismissed.

  • 16 Mar 1999

    CHAN CHUEN HO v. HKSAR

    Citation
    CHAN CHUEN HO v. HKSAR
    Court
    Court of Final Appeal
    Case number
    FACC4/1998

    The trial judge's isolated language amounted to a misdirection by implying possession automatically gave rise to a legal presumption of trafficking and thus risked reversing the burden on intent. When the summing up is read as a whole the misdirection was not cured because a jury could reasonably have convicted of simple possession rather than trafficking; therefore the proviso could not be applied. Given the evidence and delay, the appropriate remedy was to quash the trafficking conviction, substitute a conviction for simple possession and reduce the sentence from six and a half years to fou…