Hong Kong Case Law: Decisions & Judgments

Topic

Proviso (safety of conviction)

Legal area

Court

8 Dec 2015

HKSAR v. CHAN TAM FU

Citation

HKSAR v. CHAN TAM FU
Court

Court of Appeal
Case number

CACC363/2014

Although the judge failed to give the precise 'is or may be true' direction in relation to some mixed out-of-court material and there was a narrow misdirection about how to treat interview admissions, the summing-up as a whole repeatedly and clearly explained the burden and standard of proof and specifically gave the required directions in relation to provocation; taking the whole charge and factual matrix together there was no real risk the jury convicted despite reasonable doubt, so the omission/misdirection was not material and the conviction and life sentence were safe and must be affirme…
17 Feb 2015

HKSAR v. CHUNG CHI FAI

Citation

HKSAR v. CHUNG CHI FAI
Court

Court of Final Appeal
Case number

FAMC52/2014

Leave to appeal was refused because although the trial judge misdirected the jury by including recklessness as a basis for mens rea, the Court of Appeal correctly held the offence requires actual intent and was satisfied on the facts that any reasonable tribunal would inevitably have convicted; therefore the conviction was safe under the proviso and the applicant did not suffer substantial or grave injustice.
6 Aug 2014

HKSAR v. TSO KIN SHING

Citation

HKSAR v. TSO KIN SHING
Court

Court of Final Appeal
Case number

FAMC20/2014

Leave to appeal was refused because the issue raised was fact‑specific and academic given the defendant's retrial conviction, and on the facts the Court of Appeal was correct to conclude the defendant had not adduced independent non‑viva voce evidence that would entitle the prosecution to a full closing speech; additionally the prosecutor's speech at trial exceeded permissible bounds.
14 Dec 2006

LEE CHUN TAT v. HKSAR

Citation

LEE CHUN TAT v. HKSAR
Court

Court of Final Appeal
Case number

FAMC52/2006

The majority held that the trial judge was entitled to find an irresistible inference of trafficking from the admitted circumstantial facts (public street possession, ten separately wrapped packets, total weight equivalent to about 25 days' supply, packaging suitable for sale and no evidence of personal use) and that absence of any explanation from the accused could be taken into account; therefore the conviction was not unsafe and leave to appeal was denied.
11 Sept 1998

HKSAR v. CHAN CHUEN HO

Citation

HKSAR v. CHAN CHUEN HO
Court

Court of Final Appeal
Case number

FAMC12/1998

Leave to appeal was granted because it was at least reasonably arguable that the trial judge's misdirection about presumptions could have caused substantial and grave injustice and that conviction for trafficking was not inevitably established by the jury's finding on possession, so the proviso could not be assumed to cure the error.
30 May 1995

R. v. TSOI WAI MING

Citation

R. v. TSOI WAI MING
Court

Court of Appeal
Case number

CACC33/1995

The judge materially misdirected the jury by treating mere knowledge that a bag was in a vehicle as attracting the statutory presumption of knowledge; that presumption only follows from actual physical possession (carrying) of the bag. The misdirection was material and the proviso could not be applied because it was not inevitable that a properly directed jury would have convicted; therefore the heroin trafficking conviction must be quashed and a retrial ordered.
26 Apr 1994

YUNG CHUNG HO v. R.

Citation

YUNG CHUNG HO v. R.
Court

Court of Appeal
Case number

CACC432/1992

Although the judge failed to direct the jury on the knowledge ingredient for the first count, the evidence was so strong and the jury's understanding of the correctly directed second count made it inevitable they would have convicted on the first count; therefore no miscarriage of justice occurred and the proviso applies to dismiss the appeal.

Hong Kong Case Law

HKSAR v. CHAN TAM FU

HKSAR v. CHUNG CHI FAI

HKSAR v. TSO KIN SHING

LEE CHUN TAT v. HKSAR

HKSAR v. CHAN CHUEN HO

R. v. TSOI WAI MING

YUNG CHUNG HO v. R.