HKSAR v. Wong Wang Sang Stephen and Another

CACC310/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC310 OF 2006

(ON APPEAL FROM DCCC NO. 599 OF 2005)

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Before : Hon Stock JA, McMahon J and Barnes J in Court

Dates of Hearing : 30 October 2008

Date of Judgment : 30 October 2008

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J U D G M E N T

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Hon McMahon J (giving the judgment of the Court) :

1.This is an application pursuant to section 32(2) of the Court of Final Appeal Ordinance, Cap. 484, for a certificate that a point of law of great and general importance was involved in the decision which we handed down on 3 September 2008.

2.The point of law the subject of the application, pursuant to the notice of motion is as follows :

“May a judge convict on the basis that defence witnesses lied in evidence on the central issue where the prosecution had chosen not to allege to those witnesses that they had lied?”

3.However, as argued before us by Mr Macrae, SC the real point of law was a question as to how far counsel must go in making it plain to a witness that the witnesses’ evidence was not accepted on a central issue.

4.On either basis the point of law sought to be canvassed before the Court of Final Appeal is well settled by the case of Browne v. Dunn (1894) 6 R 67.  The issues canvassed by Mr Macrae go rather as to whether there was a misapplication of the principle.  That, in our judgment, does not require certification of a point of law. 

5.Accordingly, we decline to certify and the application is dismissed.

Mr Alex Lee, SADPP (D.P.P.), for HKSAR

Mr Andrew Macrae, SC and Ms Maggie Wong Pui Kei, instructed by Messrs Simon C.W. Yung & Co., for the 1^st and 2^nd Applicants