Lo Man Kam v. HKSAR

FAMC000005/2003

FAMC No. 5 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 5 OF 2003 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 212 OF 2001)

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

Date of Hearing: 28 February 2003

Date of Determination: 28 February 2003

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

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Mr Justice Bokhary PJ:

1.This applicant, who was convicted in the District Court of wounding with intent and whose appeal to the Court of Appeal was dismissed, now seeks leave to appeal against conviction out of time to the Court of Final Appeal. He asks us to certify two points as points of law of great and general importance involved in this case, and to grant him leave to appeal so that he may pursue them before the Court of Final Appeal. In his Notice of Application these two points are formulated thus:

"1. Whether, in a case that depended wholly upon the correctness of one identification of an accused, which was alleged to be mistaken, the guidelines in R v Turnbull 63 Cr. App. R. 132 should apply and should be seen to have been applied?

2. Whether, in a case in which the prosecution relies on evidence of flight, before this evidence can be used as part of the prosecution's case or as probative or supportive of guilt the Learned District Court Judge must warn himself (and be seen to do so) that the 'flight' was the sole reason for his leaving and that the 'flight' was a deliberate and conscious attempt to avoid a true conviction?"

2.He relies on the same matters in seeking leave to appeal on the substantial and grave injustice ground. Thus it is said in his Notice of Application that he suffered substantial and grave injustice in that:

"l. That in a case that depended wholly upon the correctness of a single identification of an accused, the guidelines in R v Turnbull 63 Cr. App. R. 132 were not applied nor seen to be applied. The result being that the Applicant was deprived of the safeguards to which he is entitled, and further or alternatively,

2. that the Learned District Court Judge made an erroneous finding that the evidence before him amounted to evidence of 'flight'. In doing so, he wrongly accepted evidence of 'flight' as probative of guilt (and confirmatory of the identification) without first considering whether such evidence was equivocal."

3.The victim's evidence, accepted by the District Court Judge, was to the following effect. He knew the applicant. On the occasion in question, the applicant arrived on the scene followed by a number of persons. The applicant greeted him by name; said "That's him" or "It's him"; and then punched him on the nose. This was followed by an attack upon him ? with weapons, punches and kicks ? by the persons who had followed the applicant.

4.In such circumstances, it is plainly unnecessary for a judge alone on a magistrate to give himself a Turnbull direction such as a jury sometimes has to be given.

5.As far as flight is concerned, the short answer is that the overriding reason why the District Court Judge convicted the applicant is plainly because he had been identified at the scene, not because he fled therefrom. The evidence said to be evidence of flight was in substance no more than evidence of the applicant's arrest some distance from the scene but consistent with his presence at the scene at the material time.

6.We decline to certify any point of law, and we refuse leave to appeal.

Representation:

Mr Toby R.W. Jenkyn-Jones, Mr Nicholas Y.K. Lau and

Mr Ivan L.W. Wong (instructed by Messrs Fung, Wong, Ng and Lam) for the applicant

Mr P.S. Chapman (of the Department of Justice) for the respondent