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Leung Sun Keung v Hksar

Judgment Cited in Precedent Map Related
Vincent
Judgment Date25 January 1999
Year1999
Citation[1999] 1 HKLRD 728; (1999) 2 HKCFAR 1
Judgement NumberFAMC31/1998
Subject MatterMiscellaneous Proceedings (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FAMC000031/1998 LEUNG SUN KEUNG v. HKSAR

FAMC000031/1998

FAMC No. 31 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 31 OF 1998 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC No. 17 OF 1998)

_____________________

Between:

LEUNG SUN KEUNG

Applicant

AND

HONG KONG SPECIAL ADMINISTRATIVE REGION

Respondent

_____________________

Appeal Committee: Mr Justice Litton PJ, Mr Justice Ching PJ and Mr Justice Bokhary PJ

Date of Hearing: 25 January 1999

Date of Determination: 25 January 1999

______________________________

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

______________________________

Mr Justice Ching PJ:

1. The applicant faced a jury trial on two counts. The first, upon which he was convicted, was one of rape. The second, upon which he was acquitted upon a directed verdict after a submission of no case to answer, was one of administering drugs to obtain or facilitate an unlawful sexual act. He applied to the Court of Appeal for leave to appeal to that Court against the conviction on the first count but that application was dismissed. Subsequently, the Court of Appeal certified a point of law of great and general importance. That point is,

"Where an accused has been found not guilty of an offence (following a ruling of no case) on technical grounds is the evidence showing that he committed the acts alleged in that offence (and is therefore in fact guilty of that offence) admissible against him in respect of another offence?"

2. He now seeks leave for that question to be argued in the Court of Final Appeal.

3. The applicant gave no evidence at his trial. From the evidence put forward by the prosecution certain things are clear. The girl had been drugged to the extent that she was unable to give her consent to an act of sexual intercourse. Nonetheless, she was involved in such an act at the time and place alleged. It was the applicant who had had intercourse with her in circumstances in which the jury were well entitled to find that he knew she was not capable of giving consent. There was evidence that it was the applicant who had brought the drugs with him, that it was he who had put a large amount of it into a bottle of orange juice, shaken the bottle to dissolve the drug and then pressed her to drink it. This evidence was given by two witnesses who were rightly regarded as being accomplices.

4. The second count was laid under section 121(1) of the Crimes Ordinance, Cap. 200, which reads,

"A person who applies or administers to, or causes to be taken by, another person any drug, matter or thing with intent to stupefy or overpower that other person so as thereby to enable anyone to do an unlawful sexual act with that other...

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