Lau Tat Keung v. HKSAR
Read the full judgment text of FAMC 30/1999 on BabelCite. This FAMC judgment was delivered on 31 January 2000 before Li CJ, Ching PJ, Bokhary PJ.
Criminal law – leave to appeal – Court of Final Appeal – s.32(2) Hong Kong Court of Final Appeal Ordinance, Cap. 484 – 'point of law of great and general importance' limb – 'substantial and grave injustice' limb – identification evidence – whether questions framed for the Court of Final Appeal raise a point of law or amount to a substantial and grave injustice. The applicant was convicted by a jury on four counts arising from a shooting on the evening of 18 November 1997 in the lift lobby of a domestic block, including three counts of possession of arms and ammunition without a licence and one count of shooting with intent. The prosecution's case was that the applicant, infatuated with a woman whose romantic interest lay with the victim, accosted, chased, shot and wounded the victim. The main evidence against the applicant was the victim's identification of him, with an element of 'recognition' based on a prior introduction about two months before, supplemented by CCTV still photographs in which the victim saw a man 80% like the shooter. The victim had picked the applicant out at an identification parade held eight days after the shooting. The Court of Appeal refused to quash the convictions on the 1st and 3rd counts and declined to certify a point of law of great and general importance. The applicant sought leave to appeal to the Court of Final Appeal under both limbs of s.32(2). Held, dismissing the application: under the 'point of law of great and general importance' limb, none of the five questions raised were points of law at all; all concerned how established principles of criminal law applied to the facts of a particular case, which is the role of trial courts and intermediate appellate courts, not the Court of Final Appeal. Under the 'substantial and grave injustice' limb, the Court of Final Appeal does not sit as a second court of criminal appeal; an applicant must show a departure from accepted norms so serious as to constitute a substantial and grave injustice, citing So Yiu Fung v. HKSAR, FACC No. 5 of 1999, 14 December 1999. The Court of Appeal's conclusion that the jury was properly directed on admissible and sufficient evidence, and that the convictions were neither unsafe nor unsatisfactory, was reached in a normal way and by normal standards. The applicant had not come close to surmounting the high hurdle. Application dismissed.
Legal issues: Whether any of the five questions raised amount to a point of law of great and general importance under s.32(2) of the Hong Kong Court of Final Appeal Ordinance · Whether the applicant has shown a substantial and grave injustice warranting leave to appeal under s.32(2) of the Hong Kong Court of Final Appeal Ordinance
Outcome: Application for leave to appeal to the Court of Final Appeal dismissed.
Cited by 9 cases
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FAMC000030/1999 FAMC No. 30 of 1999 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 30 OF 1999 (CRIMINAL) (ON APPLICATION FOR LEAVE TO APPEAL FROM CACC NO. 4 OF 1999) _____________________
_____________________ Appeal Committee: Chief Justice Li, Mr Justice Ching PJ and Mr Justice Bokhary PJ Date of Hearing: 31 January 2000 Date of Determination: 31 January 2000 ______________________ DETERMINATION ______________________ Mr Justice Bokhary PJ: 1. This applicant was found guilty by a jury on four counts. Three of them (being the 1st, 4th and 5th counts) were of possession of arms and ammunition without a licence. One of them (being the 3rd count) was of shooting with intent. He launched proceedings in the Court of Appeal seeking the quashing of his convictions on the 1st, 3rd and 5th counts. But when he came before that court, he abandoned his application in respect of his conviction on the 5th count. He sought only the quashing of his convictions on the 1st and 3rd counts. Having failed before the Court of Appeal, he now seeks leave to appeal to the Court of Final Appeal against those convictions. 2. Shortly stated, the prosecution's case was as follows. The applicant became infatuated with a woman who was not interested in him. Her romantic interest was in another man. On the evening of 18 November 1997 that other man (whom we will call "the victim") was accosted, chased, shot and wounded in the lift lobby of a domestic block. This shooting was the subject-matter of the 3rd count, while the weapon which must have been used to do such shooting formed the subject-matter of the 1st count. 3. On the occasion of the shooting the victim saw his attacker's face or profile several times. At one stage this was while the victim still had his glasses on and he and his attacker were face-to-face for a brief moment about three feet away from each other. 4. At an identification parade held eight days later, the victim picked out the applicant as the man who had shot him. 5. At the trial the main evidence against the applicant was the evidence of the victim who identified him as the attacker. That identification had an element of "recognition" about it in this sense. The victim said that he had been introduced to the applicant about two months before the shooting. That introduction had been made by the woman whom we mentioned earlier. It took place at her home. The victim had turned up while the applicant was on the premises installing a ventilation fan. 6. The victim was shown a number of still photographs. Those photographs had been extracted from what the block's CCTV system had recorded on the evening of the shooting. He said that the man shown in the photographs looked 80% like the person who shot him. 7. Identification was the real issue at the trial, in the Court of Appeal, and now before us. 8. The applicant failed to persuade the Court of Appeal to certify the involvement of a point of law of great and general importance. He now asks us to grant him leave to appeal to the Court of Final Appeal. He asks us to do so under both limbs of s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484. 9. As to the "point of law of great and general importance" limb, he has put forward five questions. In so far as those questions are questions of law at all, none of them raise any point of law which has not already been well settled. All of those questions concern how established principles of criminal law are to be applied to the facts of a particular case. That goes to the roles of trial courts and intermediate appellate courts. It does not go to the role of the Court of Final Appeal under the "point of law of great and general importance" limb. 10. Of course there still remains the "substantial and grave injustice" limb. This Committee has said time and again that the Court of Final Appeal does not sit as a second court of criminal appeal. And that was repeated by the Court itself in So Yiu Fung v. HKSAR, FACC No. 5 of 1999, 14 December 1999. There the Court said (at p.6) that:
11. So if the lower courts' application of principle amount to such a departure, then the Court of Final Appeal can intervene under the "substantial and grave injustice" limb. To obtain leave to appeal under this limb, an applicant must show a reasonably arguable case of such a departure. The hurdle is a high one. In our view, this applicant has not come close to surmounting it. 12. There is no real controversy as to the law in this case. As to its application, the Court of Appeal has concluded that the jury was properly directed following a trial on admissible and sufficient evidence, and that the convictions are neither unsafe nor unsatisfactory. Those conclusions were arrived at in a normal way and by normal standards. There this matter must end. 13. This application is dismissed.
Representation: Mr Christopher Grounds and Mr David Boyton (instructed by Messrs Dixon Tang & Co.) for the applicant Mr Kevin Zervos (of the Department of Justice) for the respondent |
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