Ng Ning Fu v. Hong Kong Special Administative Region

FAMC No. 60 of 2007

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 60 OF 2007 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACC NO. 418 OF 1998)

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Between

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

Date of Hearing : 31 January 2008

Date of Determination : 31 January 2008

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D E T E R M I N A T I O N

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Chief Justice Li:

1.On 17 July 1998, the applicant was convicted (V Bokhary J and a jury) of one count of trafficking in dangerous drugs and was sentenced to 22 years’ imprisonment.  On 18 May 1999, his application for leave to appeal against his conviction was dismissed by the Court of Appeal.

2.Over eight years later, on 3 December 2007, the applicant applies for leave to appeal to the Court on the substantial and grave injustice limb.

3.In seeking leave on this limb, the applicant relies on two grounds.  Both of these grounds had not been raised before the Court of Appeal.  First, it is argued that two questions asked in cross-examination concerning the applicant’s complaint to CAPO should have been disallowed and that as they were not, his right to silence and a fair trial had been infringed.  Further, it is submitted that the Judge should have directed the jury with regard to the questions and her failure to do so undermined his right to silence.  Secondly, it is argued that the Judge failed to give an adequate direction as to how to approach defence evidence.

4.As to the first ground, the applicant had chosen to make a complaint to CAPO on mistreatment by the Police.  He was cross-examined as to the contents of that complaint in an attempt to undermine his credibility, it being suggested that his complaint did not contain the details of mistreatment now alleged in his evidence.  In the circumstances of this case, this was plainly permissible.  His right to silence was not engaged. No arguable case of substantial and grave injustice based on the first ground has been shown.

5.Neither has an arguable case of substantial and grave injustice based on the second ground been established.  The Judge’s direction on the proper approach to defence evidence was clear and adequate. 

6.Accordingly, the applications for extension of time and for leave are dismissed. 

Ms Mahinder Panesar (instructed by Messrs Haldanes and assigned by the Legal Aid Department) for the applicant

Mr John Reading SC and Ms Lily Wong (of the Department of Justice) for the respondent