Permanent Stay

• Connelly v DPP [1964] AC 1254
• Lee Ming Tee (No 1) (2001) 4 HKCFAR 133; Yip Kai Foon [1999] 1 HKLRD 277; Ng Chun To Raymond [2013] 5 HKC 390
• Shum Chiu [2011] 2 HKLRD 746 [deliberate infringement by ICAC of co-defendant’s legal professional privilege]
• Ng Wai Man [1998] 2 HKLRD 1 [accomplice’s pre-trial conduct and general unreliability – delay – adverse publicity]
• double jeopardy – Yeung Chun Pong & Ors v SfJ (2009) 12 HKCFAR 867 [a magistrates’ court has no jurisdiction to entertain autrefois pleas – it only has an implied power to stay committal proceedings to prevent abuse of process – the autrefois pleas are preferably made before the High Court where stay of proceedings under rule against double jeopardy can be applied – Yeung Chun Pong & Ors v SfJ (2006) 9 HKCFAR 836]

Prohibition of reporting the proceeding

• R v Mohamed Hashim Shamsudin (unrep., HCCC 262/1986, Roberts CJ, 14 January 1987)

Disclosure

• Lee Ming Tee (No 2) (2003) 6 HKCFAR 336
• Chan Kau Tai [2006] 1 HKLRD 400

Agreed Facts

• should be read out – silent trials are not permitted – R v Kwok Chi Kwan [2003] 1 HKC 696

Cross-examinations

• antecedent statement by accused – co-accused entitled to cross-examine accused on statement – prosecution counsel not entitled to do so – Law Chung Ki & Anor (2005) 8 HKCFAR 701
• vulnerable witnesses – Harjani, Kishore Mohanlal [2017] 3 HKLRD 1
• as to veracity – Wong Sau Ming (2003) 6 HKCFAR 135
• confessions – co-accused – prosecution sought to compare differences in confessions for purpose of refuting allegation that confessions concocted – not permissible – Wong Wai Man & Ors (2000) 3 HKCFAR 322

Closing speeches

• Leung Chun Kit Brandon [2018] HKCFA 30

Directions

• Summary of overall principles – Lin Ping Keung (2005) 8 HKCFAR 52; 譚曙光 (unrep., CACC 30/2016, Pang JA, 6 September 2016)
• “Fundamental that in a criminal trial before a jury, every defendant is entitled to have his defence – however implausible, even if it appears to be an affront to common sense – fairly and accurately put to the jury for its consideration” – Hon Tsz Yin [2011] 5 HKLRD 447, para. 63
• Burden and standard of proof – Wong Wai Man (No 2) [2003] 4 HKC 517 [perhaps in many cases, the standard directions as to burden and standard of proof may be enough,” it is sometimes essential to give special directions modelled upon R v Liberato (1985) 159 CLR 507 especially when they jury is clearly in some difficulty as to the treatment of the prosecution and defence evidence] – jury should not be told in such absolute terms that it if it was not sure (that is, not satisfied) that what the defence witnesses were saying was actually true, then it hard to disregard such evidence for all purposes.
• Wrong to direct jury that the police officers are likely to be more credible and reliable than other witnesses because of the possible consequences to them – Lee Fuk Hing (2004) 7 HKCFAR 600
• Inference from circumstantial evidence – Tang Kwok Wah, Dixon (2002) 5 HKCFAR 209; Nguyen Anh Nga (2017) 20 HKCFAR 149
• When materials prejudicial to the defendant are placed before the jury – 嚴文浩 [2018] HKCA 72, para. 46
• Directions on uncharged acts – 郭慶 [2010] 3 HKLRD 761
• Direction on alternative verdicts – Ho Hoi Shing (2008) 11 HKCFAR 354
• Good character direction – Tang Siu Man (No 2) (1997-1998) 1 HKCFAR 107
• Lies direction – Mo Shiu Shing [1999] 2 HKLRD 155; Chan Chun Tak [1999] 1 HKC 169; Yuen Kwai Choi (2003) 6 HKCFAR 113; Jim Fai (2006) 9 HKCFAR 85
• Other post-offence conducts – Must the there be evidence from the defence to suggest the “other possible innocent explanations”? 藍順財 (unrep., CACC 186/2017, Yeung VP, 24 July 2018)
• Departing from specimen directions? Yeung Chun Hin [2018] HKCA 712 [per Macrae VP “19. … The danger, with respect, of judges departing from the terms of a carefully crafted Specimen Direction, particularly one which prescribes (as it does here) a structured process of analysis for the jury in its fact-finding task, is that the result risks losing both the content and the emphasis of the direction. Furthermore, where the highest courts of various common law jurisdictions, including our own, have wrestled over many years with the problem of how to direct juries where admissions are said to have come about in circumstances of oppression and have produced a Specimen Direction specifically designed to address that problem, a departure from its terms is a particularly unwise course. The suggested Specimen Direction sets out a progressive step‑by‑step approach for the jury, who might otherwise be confused by the interaction between an assessment of the truth and reliability of a confession and any circumstances of oppression which might impinge on that assessment.”] c.f. Chung Ka Lun [2018] 4 HKLRD 229 [observations that in cases involving conspiracy as opposed to substantive trafficking, para.36.1(c) of Specimen Directions in Jury Trials unnecessary and confusing – suggesting that specimen directions are not perfect and by no means straitjackets]; Tang Siu Man (No 2) (1997-1998) 1 HKCFAR 107 [“(2) Appellate courts had strained to avoid legalism in criminal practice so as not to tie up trial judges with artificial rules of practice. While such rules sometimes avoided real injustice and provided uniformity, they had not evolved simply for this purpose, nor, did they lessen the burden on appeal courts. They also tended to make the trial process mechanical. The modern tendency was to limit the range of compulsory standard directions and rules purporting to cover all cases must necessarily be scrutinised with care ( R v Hester [1973] AC 296 , Vetrovec v The Queen (1982) 136 DLR (3d) 89 and McKinney v The Queen (1990-91) 171 CLR 468 considered). (See pp.120F-121C.)”]

Jury

• No right to elect for a jury trial under Basic Law – Chiang Lily v SfJ (2010) 13 HKCFAR 208
• Sleeping jurors – R v Tam Chung Shing & Ors [1988] HKC 28
• contrary to direction of judge, jury searched Internet before returning verdict and knew defendant on retrial – unfair and prejudicial to defendant – directions regarding use of Internet – warning that court would refer jurors who carried out Internet research contrary to judge’s directions to Department of Justice for possible prosecution for contempt – Chan Huandi [2016] 2 HKLRD 384

Disposition of a criminal case

• S v Recorder of Manchester [1971] AC 481 – the two meanings of “conviction” – followed in SfJ v Yuen Lit Ping [1999] 1 HKC 476

Presumption of innocence

• Lam Kwong Wai & Anor (2006) 9 HKCFAR 574; Ng Po On & Anor (2008) 11 HKCFAR 91

Right to Silence

• Lee Fuk Hing (2004) 7 HKCFAR 600
• whether could be circumstances in which defendants’ failure to give evidence could be regarded as giving prosecution case more probative force – Li Defan & Anor (2002) 5 HKCFAR 320
• Cross-examination of defendant infringing right to silence yields inadmissible evidence – where sole and critical issue at trial and on appeal is the defendant’s credibility, that amounts to material irregularity – Ata Asaf (2016) 19 HKCFAR 225