HKSAR v. Lee Chung Ming Murphy

CACC000414A/1998

CACC 414/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 414 OF 1998

(ON APPEAL FROM DCCC 1055 OF 1997)

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Coram: Hon. Leong, Wong, JJ.A. and Pang, J. in Court

Date of hearing: 23 November 1999

Date of delivery of determination: 23 November 1999

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

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Leong, J.A. (giving the determination of the Court):

1. This is an application by the applicant under s.32 (2) of the Court of Final Appeal Ordinance, Cap. 484 for a certificate that in the decision given by this court on 10th November 1999 there is involved points of law of great and general importance.

2. The Notice of Motion filed by the applicant on 11th November 1999 states those points are:

(i) Is a defendant who admits disreputable conduct in relation to the subject matter of the charge entitled to a good character direction?

(ii) Does the prosecution have a duty to disclose complaints against their witnesses provided they are relevant, if recommendation has not yet been made by the authority by the time of the trial?

(iii) What materials must be disclosed in order to fulfil the duty of disclosure?

3. As to (i), the authorities have established the general principle that it is a matter for the discretion of the judge to assess whether a defendant is a person of good character so as to require a good character direction. In the present case, the trial judge exercised that discretion and concluded that the defendant was not a person of good character and no good character direction was required. This does not involve a point of law of great and general importance.

4. As regards (ii) and (iii), the duty for the prosecution to disclose to the defence materials which may affect the prosecution evidence or in support of the defence and the limit of such disclosure is well established by authorities. The question in the present case is whether in the circumstances of the case, the prosecution had discharged such duty having regard to the information that was available to the prosecution at the time. This does not involve any point of law of great and general importance.

5. We are of the opinion that the Notice of Motion does not raise any point of law of great and general importance that the application should be granted. The application is dismissed.

Representation:

Mr. Arthur Luk, D.D.P.P. (D.P.P.) and Ms Catherine Ko, S.G.C. for Respondent

Mr. Eric T.M. Kwok, assigned by D.L.A. for Applicant