Chau Shing Sui v. HKSAR

FAMC No. 78 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 78 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 432 OF 2003)

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Between:

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Appeal Committee : Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Chan PJ

Date of Hearing : 17 January 2006

Date of Determination : 17 January 2006

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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.This applicant stood trial in the High Court on two counts.  Count 1 was of trafficking in dangerous drugs while count 2 was of resisting police officers in the due execution of their duty.  He was convicted on both counts.  And the Court of Appeal affirmed both of his convictions.  After that, a sergeant who was one of the police officers who had given evidence for the prosecution at the applicant’s trial was convicted of conspiracy to offer advantages to a public officer, namely the sergeant himself.  The sergeant had been arrested by the Independent Commission Against Corruption two months before the applicant’s case was heard by the Court of Appeal.  But neither the applicant nor his legal advisers knew of the case against the sergeant until after the applicant’s convictions had been affirmed by the Court of Appeal.  The applicant now seeks leave to appeal out of time to the Court of Final Appeal with the view to having his convictions quashed on the basis that they can now be seen to be unsafe because the sergeant can now be seen to be unreliable. 

2.How important a witness was the sergeant?  The prosecution’s case was that the dangerous drugs were found on the applicant’s person by a team of four police officers after they had overcome his efforts to resist them.  This team of four police officers did not include the sergeant.  It is true that the applicant’s evidence was that the dangerous drugs had been “planted” on him and that they had been brought to the scene by the sergeant.  And it is also true that the applicant alleged that the sergeant had been involved in forcing him to make a statement to the effect that he had the dangerous drugs in his possession albeit for his own consumption rather than for trafficking as charged. 

3.However we consider it safe to say, first, that the jury must have accepted the evidence of the team of four police officers which did not include the sergeant and, secondly, that the jury must have accepted such evidence essentially on its assessment of those four police officers’ reliability after receiving their evidence at first-hand.  It was the evidence of that team of four police officers which formed the backbone of the prosecution’s case.  In our view, the circumstances taken in the round do not warrant an appeal to the Court of Final Appeal based on the sergeant’s subsequent conviction for corruption.  Accordingly leave to appeal is refused.

Mr Richard Wong (instructed by Messrs Michael Cheuk, Wong & Kee and assigned by Legal Aid Department) for the applicant

Mr David C. Leung (of the Department of Justice) for the respondent