Case Document

100%Judiciary

CACC000545A/2001

CACC 545/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 545 OF 2001

(ON APPEAL FROM DCCC 1219 of 2000 AND 248 of 2001)

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BETWEEN
	HKSAR	Respondent

	AND

	CHOW CHE WAI	Applicant

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Coram: Hon Stock JA, Yeung JA and Gall J in Court

Date of Hearing: 7 May 2003

Date of Judgment: 7 May 2003

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1.By a judgment handed down on 21 March 2003, this Court dismissed an application for leave by this applicant against conviction in the District Court for two offences of conspiracy to defraud. The applicant, by Notice of Motion dated 17 April 2003, seeks a certificate under section 32(2) of the Court of Final Appeal Ordinance, that there is involved in our decision a point of law of great and general public importance.

2.At paragraphs [30] to [45] of our judgment, we addressed the ground in respect of which the suggested point arises, namely, the failure of the trial judge himself, in the face of the evidence of the main prosecution witness who had been D1 before he changed his plea, to recall some witnesses who had already given evidence for the prosecution. It had been suggested to us in argument that despite the fact that the judge had specifically arranged for the witnesses to be at court to be further examined if either party so wished, and despite the fact that the parties expressly declined the opportunity for their recall, the judge should have called them himself, even though that course had not been suggested to him. For the reasons we have provided in our judgment, we ruled that the ground had no merit.

3.The point of law of suggested great and general public importance which is presented by the notice of motion is as follows:

"When a person, who is charged as a defendant ("the former defendant"), becomes a witness for the prosecution after the commencement of a criminal trial and, on an issue relevant to the guilt of a remaining defendant, there is a fundamental conflict between the evidence of the former defendant and the evidence of earlier witnesses called by the prosecution ("the prosecution witnesses"), which arises ex improviso out of cross-examination of the former defendant, is the trial judge under a duty to exercise his discretion to recall the prosecution witnesses, should the prosecution not do so, in order to give them an opportunity to testify on such matters of fundamental conflict, if the trial judge intends to rely on the evidence of the former defendant in preference to the evidence of the prosecution witnesses."

4.It seems to us self-evident that questions of this kind are case specific, and that the question posed does not lend itself to the generalization which is implicit in the question. Furthermore, the question as posed is incomplete in the light of the events in this particular case. It omits the fact that both counsel were given and yet declined the opportunity to put further questions, that the judge explained how, as matters then stood, he might treat the apparent conflict of evidence, and that Mr Marash himself said to the judge that he did not see any warrant for any further action.

5.In short then, the question posed is posed not only in a factual vacuum, when factual context will be all-important to such questions, but in a context which in this case is materially incomplete.

6.In any event, in our judgment, the principles are sufficiently established. It seems to us that Mr Marash's true complaint is of their application in this particular case.

7.In these circumstances, we decline to grant the certificate requested.