HKSAR v. MBUGUA JAMES WAIGWA

FAMC No. 19 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 19 OF 2014 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACC NO. 188 OF 2009)

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Between:

	HKSAR	Respondent
	and
	MBUGUA JAMES WAIGWA	Applicant

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Appeal Committee: Mr Justice Ribeiro PJ, Mr Justice Tang PJ and Mr Justice Fok PJ

Date of Hearing and Determination: 4 June 2014

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DETERMINATION

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Mr Justice Ribeiro PJ:

1.  This is the Determination of the Appeal Committee. 

2.  Application is made for leave to appeal on the basis that sufficiently important questions arise relating to the trial judge’s direction to the jury on the defence of duress regarding the immediacy of the threat and the opportunity to evade it.  Mr Ross seeks to suggest that a crucial difference exists between a direction requiring the alleged threat of death or serious bodily injury to be one threatened to be carried out “immediately or almost immediately” as opposed to one to be carried out “imminently”.

3.  We are not persuaded of the viability of the issue sought to be raised.  In our view, the Court of Appeal’s reasons for dismissing the appeal are unassailable[1] and the applicant’s case is not reasonably arguable.  The application must be dismissed.

(R.A.V. Ribeiro)	(Robert Tang)	(Joseph Fok)
Permanent Judge	Permanent Judge	Permanent Judge

Mr Phillip Ross, instructed by Christine M. Koo & Ip and assigned by the Legal Aid Department for the applicant

Ms Catherine Ko, ADPP (Ag) of the Department of Justice for the Respondent