HKSAR v. Chan Chu Leung (陳柱良)

FAMC No. 52 of 2022

[2023] HKCFA 23

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 52 OF 2022 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NO. 160 OF 2010)

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DETERMINATION

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Mr Justice Ribeiro PJ:

1.We refuse leave to appeal in relation to the applicant’s complaints concerning the “1^st impugned cross-examination” involving one “Ah Chu” and the Judge’s direction in respect thereof, referred to in his Form B leave application dated 21 November 2022.

2.We are satisfied that points of law of great and general importance are involved in the decision and grant leave to appeal in respect of the following Question, namely:

“When it is common ground that a defendant has maintained his pre-trial right to silence, is it permissible for the prosecution to question or make use of:

(a) the defendant’s pre-trial lack of or late complaint regarding police impropriety during the investigation giving rise to the charge?

(b) the defendant’s pre-trial lack of or late disclosure, whether in the form of a complaint or not, about a matter other than ‘the occurrence of an offence, the identity of the participants and the roles which they played’ but nonetheless addressing a piece of incriminating evidence?”

3.Leave to appeal in respect of the aforesaid Question is confined to the applicant’s complaints arising out of the “2^nd impugned cross-examination” involving evidence of florescent powder referred to in the aforementioned Form B.

4.We also grant leave to appeal on the substantial and grave injustice basis, in the event that an infringement of the applicant’s right of silence is established, regarding the issue whether any such infringement was cured by the Judge’s direction to the jury.

5.This appeal will be listed for hearing on 28 November 2023.

Mr Shahmim K. Khattak (Kelly Lam), Mr Anthony Lai and Mr Chris Chan, instructed by Poon & Cheung, for the Applicant

Mr Ned Lai, DDPP (Ag.) and Mr Marcus Lee, SPP, of the Department of Justice, for the Respondent