HKSAR v. Nancy Ann Kissel

CACC 414/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 414 OF 2005

(ON APPEAL FROM HCCC NO. 113 of 2004)

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BETWEEN

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Before:   Hon Stuart-Moore VP, Stock JA and Wright J

Date of Hearing: 10 February 2009

Date of Judgment: 10 February 2009

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.This is an application pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, for a certificate that points of law of great and general importance were involved in the judgment this court handed down on 6 October 2008.

2.In a document termed ‘Revised Points of Law of Great and General Importance’, handed to the members of this court minutes before we sat, four questions of law are identified.  This document represents the third version in recent months of the questions on which we were to be asked to certify.  These relate to cross-examination during the trial about bail proceedings, self defence, provocation and diminished responsibility.

3.The only point on which we consider it appropriate to certify is the first although in more specific terms than those set out by Mr King SC.

4.The question which we shall certify will be as follows:

“For the purpose of impugning credibility, is the prosecution entitled to cross-examine a defendant on affidavits tendered, and on submissions advanced by counsel, on the defendant’s behalf in a bail application?”

5.We shall grant a certificate on this limited basis but it will, of course, be for the Court of Final Appeal to decide whether the applicant should be given leave to appeal.

Mr Kevin Zervos, SC, DDPP and Ms Ada Chan, SPP, of the Department of Justice, for the Respondent.

Mr Alexander King, SC and Ms Kelly Chan, instructed by Messrs Mallesons Stephen Jaques, for the Applicant.