Chau Ching Kay Nauthum v. HKSAR

FAMC000006/2002

FAMC No. 6 of 2002

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 6 OF 2002 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 505 OF 2000)

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Appeal Committee : Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 21 March 2002

Date of Determination: 21 March 2002

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DETERMINATION

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Mr Justice Bokhary PJ:

1.On conviction, we certify the involvement of the following point of law of great and general importance. Whether silence by a person in authority in the face of a conditional offer to make a confessional statement can amount to an inducement to confess, and whether an issue in that regard at the trial requires a specific finding of fact?

2.We grant leave to appeal to the Court of Final Appeal to pursue that point on conviction.

3.On loss of time, we certify the involvement of the following three points of law of great and general importance:-

(i) Whether a separate leave application before a single judge of the Court of Appeal is required by the Criminal Procedure Ordinance, Cap. 221, on its true construction?

(ii) Whether not having a separate leave application made to a single judge of the Court of Appeal prior to the matter coming before the full Court of Appeal renders the safeguard under s.83 W(2)(a) of the Criminal Procedure Ordinance nugatory or at least so severely diminished that, in the absence of such an application made to a single judge, any contrary direction under subsection (1) of that section would be unconstitutional as contrary to the applicant's right to an appeal according to law conferred by art. 11(4) of the Bill of Rights and guaranteed by art. 39 of the Basic Law?

(iii) Whether the rules of natural justice require that if the Court of Appeal contemplates ordering a loss of time, then the applicant or his counsel should be given an opportunity to be heard, after the leave application is dismissed, on the question of whether any, and if so how much, loss of time should be ordered?

4.We grant leave to appeal to the Court of Final Appeal to pursue those points on loss of time. Those points supersede the point which the Court of Appeal itself had certified in the following terms: "What are the circumstances when the Court of Appeal may give a contrary direction under s.83 W(1) Criminal Procedure Ordinance, Cap. 221 and order that the time during which the appellant is in custody pending the determination of his appeal shall not be reckoned as part of the term of the sentence?"

5.On loss of time, we also grant leave to appeal to the Court of Final Appeal on the substantial and grave injustice ground.

Representation:

Ms Audrey Eu SC and Mr Wong Po-wing (instructed by the Legal Aid Department) for the applicant

Mr D.G. Saw SC, Mr Cheung Wai-sun and Mr Kelvin Lee (of the Department of Justice) for the respondent