HKSAR v. Lau Tung Chee Alan

CACC 457/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 457 OF 2003

(ON APPEAL FROM DCCC 272 of 2003)

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BETWEEN

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Before : Hon Stuart-Moore VP, Stock JA and Lunn J

Date of Hearing : 28 June 2005

Date of Judgment : 28 June 2005

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.In this application for a certificate to appeal to the Court of Final Appeal, pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, two points of law are identified in a Notice of Motion dated 17 May 2005 which are said to have been involved in the decision we handed down on 21 April 2005.  These are as follows:

“	(1)	Whether the application of the proviso to section 83(1) of the Criminal Procedure Ordinance, Cap. 221 can be appropriate in the context of a trial where:-
		(i)	the prosecution case turned entirely upon the evidence of one witness; and
		(ii)	there was a material irregularity by non-disclosure of information; and
		(iii)	the non-disclosed information was plainly relevant to the cross-examination of that key witness as to his credibility (para. 52 of the Judgment); and
		(iv)	the defence case was still open to take on a different emphasis.
	(2)	Whether the rule of practice to be adopted by the appellate court in the assessment of new non-disclosed information should be one of ex post facto objective assessment without considering the possible scenario or the weight of a key witness’s evidence might have been had a defence counsel have had the opportunity to cross-examine that key witness on those non-disclosed information in determining the existence and/or meaning of ‘miscarriage of justice’ in the context of section 83(1) of the Criminal Procedure Ordinance, Cap. 221.”

2.Although our decision was reached by a majority, it is to be noted that the dissenting judgment began with two sentences which in the opinion of us all were plainly right.  Stock JA said:

“

92.

There is no complex issue of law in this case.  The principles are well established.”

3.We decline to grant a certificate.

Mr I C McWalters, SC, Ag DDPP and Ms Winnie Ho, SGC, of the Department of Justice, for the Respondent.

Mr John Griffiths, SC and Ms Maggie Wong Pui Kei , instructed by Messrs Dominic Y K Lai & Co., for the Applicant.

Applicant's leave to appeal to Court of Final Appeal refused by Court of Final Appeal. Please refer to FAMC58/2005 dated 3 October 2005