Cheung Wai Ming v. HKSAR

FAMC000015/2003

FAMC No. 15 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 15 OF 2003 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 571 OF 1998)

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

Date of Hearing: 5 May 2003

Date of Determination: 5 May 2003

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DETERMINATION

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Mr Justice Bokhary PJ:

1.Taking a point not taken in the Court of Appeal, the applicant seeks leave to argue before the Court of Final Appeal that he has suffered substantial and grave injustice because, quoting from his written application, the trial judge:

"(i) failed to direct the jury generally as to the inherent dangers of acting upon the evidence of prison informers, and

(ii) failed to direct the jury as to the particular dangers involved in acting upon such evidence in this case where the making of the prison confession was not supported by other independent evidence."

This necessarily involves the contention that it is an accepted norm in Hong Kong to direct juries along those lines. Is that contention well-founded?

2.Mr Gary Plowman SC for the applicant, arguing ably as always, has cited a number of cases including two decisions of the High Court of Australia, namely Bromley and Karpany v. R (1986) 161 CLR 315 and Pollitt v. R (1992) 174 CLR 558.

3.The judgments in those two cases are very much concerned with corroboration. In Hong Kong the position is as follows. By s.60 of the Criminal Procedure Ordinance, Cap. 221, the rule whereby a judge was obliged to warn the jury or himself of the danger of convicting on the uncorroborated evidence of an accomplice was abrogated. And by s.4B of the Evidence Ordinance, Cap.8, the rule whereby a judge was obliged to warn the jury or himself of the danger of convicting on the uncorroborated evidence of the complainant in a sexual offence case was abrogated. It would be surprising if that left any room for a practice under which a judge normally warns the jury or himself of the danger of convicting on the uncorroborated or unsupported evidence of a prison informer.

4.Whether corroborated or uncorroborated and whether supported or unsupported, the evidence of a witness like the one here in question has to be approached with particular case. In that regard, as appear in his summing-up, Gall J drew the jury's attention to the care necessitated by (i) this witness's criminal record, (ii) his personal interest to serve in becoming a prosecution witness, (iii) his failure to tell the police about the applicant's alleged confession, only telling the ICAC about it later, (iv) his grudge against the applicant who had assaulted him and (v) the discrepancies between what he had told the ICAC and his evidence in court.

5.Despite the skill and care with which this application has been argued, leave to appeal out of time is refused.

Representation:

Mr Gary J. Plowman SC (instructed by Messrs Haldanes assigned by Director of Legal Aid) for applicant

Mr B.M. Ryan (of the Department of Justice) for respondent