Read the full judgment text of FAMC 000007/1997 on BabelCite. This FAMC judgment was delivered on 18 December 1997 before Andrew Li CJ, Henry Litton PJ, N.P. Power NPJ.
Criminal law – appeal – leave to appeal to Court of Final Appeal – substantial and grave injustice – fresh evidence – accomplice's out-of-court admission of perjury – corroboration – misdirection – materiality – Criminal Procedure Ordinance s.83V and s.83(1). The applicant was convicted of drug trafficking following an undercover police operation in which Inspector Chang posed as a buyer of heroin and arranged a purchase through the applicant. The applicant's brother-in-law Chan testified against him as an accomplice under immunity and the applicant was convicted. On appeal to the Court of Appeal (CACC 198/1995), the applicant sought to adduce a letter from Chan (who had disappeared and was thought to be in the mainland) admitting he had given false testimony at trial to save himself. The Court of Appeal rejected the application and upheld the conviction. The applicant then sought leave to appeal to the Court of Final Appeal under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, on three grounds: (1) wrongful rejection of the fresh evidence letter; (2) misdirection on corroboration regarding telephone and pager records; (3) failure to direct the jury that out-of-court lies in a bail affirmation were not probative of guilt. Whether a disappeared accomplice's unparticularised out-of-court admission of perjury could constitute fresh evidence under s.83V(2) capable of affording a ground for allowing the appeal. Held: no, the letter made no mention of the facts and was not 'evidence' that could afford any ground for allowing the appeal. Whether the trial judge's direction that telephone and pager records were capable of corroborating the accomplice's evidence amounted to a material irregularity. Held: no, although the records (apart from the mobile phone call) were not capable of corroboration, the misdirection was not a material irregularity within the meaning of s.83(1) of the Criminal Procedure Ordinance in all the circumstances. Whether failure to direct the jury on out-of-court lies amounted to error. Held: no, the Court of Appeal dealt with the matter fully and the Appeal Committee agreed with its reasoning. Application for leave to appeal dismissed.
Legal issues: Whether a letter containing an out-of-court admission of perjury by a disappeared accomplice could be received as fresh evidence under s.83V Criminal Procedure Ordinance · Whether the trial judge's misdirection on corroboration regarding telephone and pager records amounted to substantial and grave injustice · Whether the trial judge erred by failing to direct the jury that the applicant's out-of-court lies were not probative of guilt
Outcome: Application for leave to appeal dismissed.