Wan Tak v. HKSAR

FAMC000005/1999

FAMC No. 5 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 5 OF 1999 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC No. 411 OF 1996)

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Appeal Committee: Mr Justice Litton PJ, Mr Justice Ching PJ and Mr Justice Bokhary PJ

Date of Hearing: 27 April 1999

Date of Determination: 27 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 was convicted of murder. He applied to the Court of Appeal for leave to appeal from that conviction but his application was refused. He now applies to this Committee for leave to appeal to the Court of Final Appeal. He is well out of time. The decision of the Court of Appeal was delivered on 26 September 1997. Section 33(1) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, requires that an application for leave to appeal in a criminal case should be made within 28 days of that decision. This application was not made until 7 February 1999, and no explanation has been put forward for the delay. He is not represented and it is difficult to ascertain what his grounds may be for asserting that he has been subjected to grave and substantial injustice or what, if any, point of law of great and general importance may be involved.

2. The story is a very sad one. He married a woman whom he had brought from the mainland. He then discovered her committing adultery in flagrante delicto in Kowloon Tong and administered a beating to her. They separated but later reconciled. The deceased, who was the wife's mother, came to Hong Kong for a holiday. One day she asked the applicant to come to the wife's flat where she was staying and he did so. There an argument developed after she accused him of having disfigured her daughter's face and of forcing her into prostitution. The deceased appears to have been killed with a kukri knife with which she attacked him. He admits that he killed her.

3. At the trial no issue of self defence was raised but the trial judge nevertheless gave full directions upon it. The defence was one of provocation upon which the Court of Appeal found that the jury had been properly directed. We agree and nothing more needs to be said about it. The applicant's grounds of appeal cover no less than 13 pages and 20 pages of exhibits. The grounds consist mostly of allegations concerning the background of the deceased, details of his own personal background and arguments on details of the evidence. None of these constitutes a ground upon which leave to appeal could be granted under either limb of section 32(2) of the Ordinance. Together they amount to no more than the assertion he puts forward in the last paragraph of his grounds, namely that the killing was accidental.

4. The one matter with which we must deal separately is an allegation that his counsel prevented him from giving his full story in evidence. This point was raised and dealt with fully in the Court of Appeal. Counsel concerned gave that Court his own version of the events at trial. However that may be, the matters which the applicant asserts he was prevented from giving in evidence do not assist him. We would add that the conduct of Counsel can only afford a basis for complaint in a wholly exceptional case as set out in R v. Clinton [1993] 1 WLR 1181 at 1187 as cited by the Court of Appeal. This was not such a case.

5. At the hearing before us, the applicant raised what he called a number of new points. Some of them, for instance that the place where the sheath for the kukri knife was found was small, and that he and his wife had made up after the Kowloon Tong incident, are not new. He also sought to put in newspaper accounts of other cases, which we refused.

6. Nothing we have heard and seen persuades us that the matter should proceed to the Court of Final Appeal. This application is dismissed.

Representation:

Applicant, Wan Tak, in person

Mr D G Saw SC and Mr Simon Tam SGC (of the Department of Justice) for the Respondent