Chan Shu Ming Andy v. HKSAR

FAMC000055/2003

FAMC No. 55 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 55 OF 2003 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 117 OF 2002)

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

Date of Hearing : 3 May 2004

Date of Determination : 3 May 2004

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

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Mr Justice Chan, Acting CJ:

1.The applicant says that he was wrongly convicted of three corruption charges: two for conspiracy and one for offering an advantage. He now seeks leave to appeal to the Court of Final Appeal on the ground that he has suffered substantial and grave injustice.

2.His main complaint is that the judge should not have accepted the evidence of the key prosecution witness, a Mr Patrick Chan for two reasons:

(1) the judge was wrong to admit the taped conversations between Chan and the applicant because these taped conversations were previous consistent statements and were more prejudicial than probative and that the judge was also wrong to rely on the taped conversations to support Chan's evidence; and

(2) Chan's evidence was contradicted by the documentary evidence placed before the court, in particular the credit card receipt evidence.

3.The first point is a new point not taken at the trial or in the Court of Appeal. We do not think it is reasonably arguable. Looking at the Reasons for Verdict more carefully, it is clear that the taped recordings were not admitted as previous consistent statements made by Chan in support of his evidence given in court. In fact, counsel for the applicant is unable to pinpoint any particular parts in the taped conversations which were relied upon by the trial judge in support of any part of Chan's evidence against the applicant. The judge was not saying that the taped conversations were consistent with Chan's evidence. He was using the recordings to illustrate the reaction of the other implicated persons including the applicant in the conspiracy in response to what Chan said was happening pursuant to the alleged conspiracy. We think that the judge was entitled to do so in assessing Chan's evidence. On the other hand, quite apart from the taped conversations, the judge gave a detailed analysis of why he accepted Chan's evidence in his Reasons for Verdict (see paragraphs 26 to 34 and 41 to 42). The Court of Appeal approved of the judge's analysis and reasoning (see paragraphs 19, 60 and 62 of its judgment). These are convincing reasons. There was also undisputed evidence of payment of money to the applicant/his company and of the false invoices which the applicant had failed to explain. His evidence was rejected for the reasons given by the judge in his Reasons for Verdict (see paragraphs 49 to 57).

4.The second point is a point raised in the written submissions but not emphasised in the oral submissions. We do not think it is reasonably arguable either. The judge dealt with the credit card receipts in detail in his Reasons for Verdict (see paragraphs 43 to 47) and the Court of Appeal also agreed with the judge's reasons (paragraph 68 of its judgment). The judge was entitled to look at the evidence of Chan "globally" and to conclude that Chan's credibility was not affected by these discrepancies.

5.For these reasons, we do not think that there is any merit in the application which we dismiss.

Representation:

Mr David Boyton (instructed by Messrs S.Y. Chu & Co.) for the applicant

Mr Kevin P Zervos, SC and Ms Winnie Ho (of the Department of Justice) for the respondent