Chuen Lai Sze v. HKSAR

FAMC000002/1999

FAMC No. 2 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2 OF 1999 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA No. 470 OF 1998)

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Appeal Committee: Chief Justice Li, Mr Justice Ching PJ and Mr Justice Bokhary PJ

Date of Hearing: 23 April 1999

Date of Determination: 23 April 1999

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

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Mr Justice Ching PJ:

1. The applicant, a serving police inspector, was found guilty with three of her team of having committed the offence of an assault occasioning actual bodily harm. Her appeal to the Court of First Instance was dismissed and she now applies for leave to appeal to the Court of Final Appeal out of time. So far as the extension of time is concerned we would be minded to accede to the application if the proposed appeal bore any chance of success.

2. There appear to be three grounds which are sought to be put forward. The first is that a person by the name of Chung Chi-wing was not called as a witness and that this made it impossible for the applicant to have a fair trial. The second is that in the absence of that witness the magistrate was wrong in refusing a stay of the proceedings. The last is that in her appeal to the Court of First Instance her then counsel wrongly abandoned a ground which substantially raised these matters.

3. Chung had made two statements to the police. The prosecution had decided not to call him as a witness but had provided them to the defence as unused material. They were shown to the magistrate to assist her in her determination as to whether or not a stay should be granted. It is sufficient to say of them that they were in no way helpful to the defence. The application was based on an assertion that there was a conspiracy between Chung and the victim of the assault to frame the applicant and her co-accused. The statements go nowhere near assisting to prove such an allegation. Indeed, in argument before the magistrate it was conceded that Chung's evidence did not support the applicant's case but it was asserted that his presence would allow matters to be explored whereupon the Court might make findings which support that case. That is a wholly erroneous basis upon which it can be insisted that a witness should be called. No reasonable grounds have been put forward to show that the magistrate erred in refusing a stay.

4. The applicant's lawyers had themselves tried to serve Chung with a subpoena but were unsuccessful. It is then said that the prosecution or the magistrate ought to have called him. Quite apart from the irrelevance of his evidence it is not possible to see how the prosecution or the magistrate could have done so.

5. These complaints are wholly unjustified. It is a matter of extreme regret that it has been thought proper to allege that counsel for the applicant in the Court of First Instance had been guilty of flagrant incompetence in abandoning the ground of appeal already referred to. That is a very serious allegation to make and should only be made where there are firm grounds for it. There are none and it should never have been made.

6. This application has no merit whatsoever and it is dismissed.

Representation:

Mr Ian Lloyd and Mr Peter Callaghan (instructed by Messrs Gary Mak, Dennis Wong & Chang) for the applicant

Mr D G Saw SC and Mr Marco Li (of the Department of Justice) for the respondent