15 Jun 2018
The judge's failure to direct the jury on the proper legal treatment of flight/resisting the police as circumstantial evidence of guilty knowledge was a material omission that rendered the conviction unsafe; the proviso could not be applied because the evidence was not as cogent as in precedent cases, therefore the conviction was quashed and a retrial ordered.
8 Nov 2016
The judge erred by treating and directing evidence of alleged uncharged dealings at the mah-jong premises as potentially probative of the charged importation without requiring the jury to be sure of the occurrence of those uncharged acts and without warning against propensity inferences; those were mis-directions and non-directions that rendered the conviction unsafe; the proviso does not apply; conviction quashed and retrial ordered.
3 Dec 2014
The Judge's unequivocal finding that there was no evidence the applicant was a drug addict was incorrect in light of available indirect evidence; that error was material because it underpinned her assessment of other circumstantial evidence, rendering the conviction unsafe. The proviso could not be applied because the error cast doubt on the correctness of other findings. Accordingly the conviction was quashed and a retrial ordered because there remained sufficient evidence capable of supporting a trafficking charge.
22 Feb 2013
Section 72 of the Shipping and Port Control Ordinance is not to be treated as imposing absolute liability as regards the consequence of endangerment; the presumption of mens rea applies and, on proper construction for a serious indictable offence, displacement of full mens rea is to be replaced by the second Hin Lin Yee alternative: the prosecution must prove conduct, causation and endangerment; if the defendant adduces evidence which, if unrebutted, raises a reasonable doubt that he honestly and reasonably believed his conduct would not cause danger, the defendant must be acquitted unless th…
15 Sept 2010
The Court granted leave to appeal selectively on the grounds articulated: leave was granted where arguable points of law or potential substantial and grave injustice were shown (including misapplication of the proviso, wrongful admission of documents, failure to review facts, and questions about whistle‑blowing obligations), and the prosecution was granted leave to appeal the quashing of Ms Fan's conviction on Charge 1 to argue consistency between Charge 2 and Charge 1 outcomes.
15 Sept 2010
Leave to appeal was granted selectively because each applicant identified arguable grounds that raised either a point of law under s.32(2) or a real prospect of substantial and grave injustice warranting appellate consideration; the Court did not decide the merits but allowed the issues to be ventilated at full appeal.
14 May 2010
The Court of Final Appeal held that although the trial judge omitted a good character direction on credibility, the Court of Appeal was entitled to apply the proviso because, applying the Launder test, a hypothetical reasonable jury properly directed on circumstantial evidence would inevitably have convicted; therefore no substantial and grave injustice was shown and the application for leave was dismissed.
13 Jan 2009
Leave to appeal refused because, despite the trial judge's mistaken reference to a phone call, the evidence taken as a whole (empty prior account, applicant's instruction for remittance, his presentation of identity and a purported higher value instruction, and his conduct) amply established knowledge of the mistaken overpayment and dishonest appropriation such that there was no substantial and grave injustice and the proviso could be applied to uphold the conviction.
17 Dec 2008
The court granted admission because the matter involved a substantial point of law (the application and possible elaboration of the Browne v Dunn rule and related appellate issues including use of the proviso and hearsay) and continuity of representation by the same counsel who had acted below justified allowing the overseas counsel to appear and prepare for the CFA proceedings.
5 Dec 2008
The jury were misdirected as to how they should deliberate by the inappropriate board-of-directors analogy and use of 'give and take', but on the evidence a reasonable hypothetical jury properly instructed would inevitably have found intent to cause really serious injury and that provocation was negatived; therefore the proviso applies and the conviction is affirmed.