Lam Chi Pan v. Commissioner of Police

CACV 408/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 408 OF 2005

(ON APPEAL FROM HCAL NO. 93 OF 2005)

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BETWEEN

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Before:  Hon Tang VP and Hon Waung J in Court

Date of Hearing: 1 December 2006

Date of Judgment: 1 December 2006

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J U D G M E N T

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Hon Tang VP:

1.We have given leave to amend the Notice of Appeal and the grounds in Form 86A as well as admitted fresh evidence.

2.The new ground reads as follows:

“the Applicant did not have a fair hearing before the Adjudicating Officer from 22^nd November 2004 to 25^th November 2004 in that:

(1) despite the clear instruction given by the Applicant that he was not the person stopped by the two police officers at the Star Ferry Concourse at the material times, his representative had failed to appreciate the critical importance of the police’s identification evidence to the Applicant’s case and failed to challenge the identification evidence in the said hearing; and

(2) such failure had resulted in the fairness of the hearing being compromised.”

3.Mr Philip Dykes, SC, has informed us that this new ground, in fact, will henceforth be the only ground relied on so far as the application for judicial review is concerned.

4.We note from the reasons given by A Cheung J when he dismissed the application for a leave he was influenced by the fact that there were other evidence which supported the identification of the applicant.  When one looks at the reasons given by the adjudicating officer, when he came to deal with the other charges, which might otherwise support the question of identification, he dismissed those other charges, essentially for a technical reason namely that they were not committed in a course of his duty.

5.But the adjudicating officer also had this to say:

“I am not satisfied that he had made any of those statements ‘in the course of his duties’ and without mentioning other inadequacies of the evidence on this charges by find D not guilty of charges B, C and D.”

6.We do not know what those inadequacies might be and whether or not they would be critical in undermining the evidence of identification of the applicant.  For the above reasons, I believe that leave should be granted, and I would therefore, allow the appeal. Costs in the cause of application for judicial review.

Hon Waung J:

7.I agree.

Mr Philip Dykes, SC and Mr Newman Lam, instructed by Messrs Gary K W Tam and Co., for the Applicant.