LIN PING KEUNG v. HKSAR

FAMC No. 39 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 39 OF 2004 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 514 OF 2002)

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1. A judge’s summing-up, as its name indicates, involves not only directions to the jury on the relevant law but also the marshalling of the salient facts.  Not every error on the part of a judge when addressing the facts in the course of a summing-up will provide a ground for quashing a conviction.  It depends on the circumstances.  The relevant circumstances in the present case may be gathered from paragraphs 16 and 17 of the Court of Appeal’s judgment.  It is reasonably arguable that the judge’s error in question constituted substantial and grave injustice in that it led to his belittling a defence point which it was important that the jury consider upon the true state of the facts.  Accordingly we grant the applicant leave to appeal to the Court of Final Appeal. 

2. The applicant is on legal aid.  And in all the circumstances we trust that the Director of Legal Aid will see fit to assign Senior Counsel to lead Mr Newman Wong.  Mr Wong has performed his duty with ability, but this is a case for a leader.

[Following discussion with counsel, the Appeal Committee announced that the appeal will be heard on Monday, 28 February 2005.]

Mr Newman Wong (instructed by Messrs Chan & Tsu and assigned by the Legal Aid Department) for the applicant

Mr David Leung (of the Department of Justice) for the respondent