Yip Chi Fun v. HKSAR

FAMC No. 54 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 54 OF 2004 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 234 OF 2001) 

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Between:

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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ andMr Justice Ribeiro PJ

Date of Hearing: 14 December 2004

Date of Determination: 14 December 2004

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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. The first complaint of substantial and grave injustice made on the applicant’s behalf is there was a portion of the applicant’s personal assistant Ms Anita Wong’s evidence which shows that her impression was that the applicant had not bothered to look at the relevant documents.  But when one looks at that portion of her evidence, one finds no more than her saying that she had no idea whether or not the applicant had bothered to look at those documents.  That is not the same as saying that her impression was that he had not bothered to look at them.  This complaint is plainly devoid of merit.

2. Turning to the applicant’s second complaint of substantial and grave injustice, it is set out thus in his written Application for Leave to Appeal:

“The Applicant has suffered substantial and grave injustice in that the Learned Trial Judge failed to direct the jury on the relevance of the good character of the Applicant and that the said failure, although was made aware to the Court of Appeal was never fully canvassed in the hearing of the Applicant's appeal to the Court of Appeal on 14 August 2002.”

The applicant and his co-accused were represented by the same counsel in the Court of Appeal.  Counsel took the “character direction” point on behalf of the co-accused (who had given evidence) but not on behalf of the applicant (who had not given evidence).  As far as the co-accused is concerned, the trial judge’s failure to direct the jury on the relevance of good character was fully considered by the Court of Appeal who treated it as a non-direction but dismissed the co-accused’s appeal by an application of the proviso.  There having been a conscious decision by counsel for a discernible reason not to take the “character direction” point on intermediate appeal, we do not regard it as appropriate in all the circumstances to send the point to the Court of Final Appeal for it to be taken there for the first time.

3. The applicant’s third and final complaint of substantial and grave injustice concerns certain documents produced by the prosecution as exhibits at the trial.  It is essentially to the effect that there is a high risk that the jury would have relied on those documents for an illegitimate purpose to the applicant’s detriment.  This point was not taken on intermediate appeal.  And we are nowhere near to being persuaded that justice calls for its consideration by the Court of Final Appeal.

4. In the result, leave to appeal is refused.

Mr Philip Wong (instructed by Messrs Cheung, Chan & Chung and assigned by the Legal Aid Department) for the applicant

Mr Graham D Goodman (of the Department of Justice) for the respondent