Nancy Ann Kissel v. HKSAR

FAMC No. 64 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 64 OF 2008 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 414 OF 2005)

----------------------

----------------------

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

Date of Hearing: 16 April 2009

Date of Determination: 16 April 2009

-----------------------------

DETERMINATION

-----------------------------

Chief Justice Li:

1.Leave to appeal is granted limited to the following grounds referred to in the applicant’s Amended Application for leave to appeal.

2.Leave to appeal is granted for Ground 1, both on the point of law limb and the substantial and grave injustice limb.  The question certified by the Court of Appeal is substituted by the following question:

“Whether the prosecution is entitled at trial to cross-examine a defendant by reference to materials relied on by such defendant on bail application(s), such as affidavits, medical reports, and counsel submissions and if so, to what extent, and for what purpose.”

3.Leave to appeal is also granted on the substantial and grave injustice limb for Grounds 2 and 3.

4.Leave is refused on the other grounds relied on by the applicant in her Amended Application.

5.In the written Cases, the parties should address the issue whether the proviso should be applied.

Mr Alexander King SC, Mr Adrian J Halkes and Miss Kelly Chan (instructed by Messrs Mallesons Stephen Jaques) for the applicant

Mr Kevin Zervos SC and Mr P S Chapman (of the Department of Justice) for the respondent