HKSAR v. Ma Chor Ming and Another

HCMA909/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.909 OF 2008

(ON APPEAL FROM ESCC 3582 OF 2007)

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BETWEEN

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Before : Deputy High Court Judge M. Poon in Court

Date of Hearing : 17 July 2009

Date of Determination : 17 July 2009

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

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1.This application arises from an appeal against the decision of a magistrate, to which I have dismissed on 19 June 2009. The Notice of Motion was supported by an affirmation of Fung Ping Tak, wherein it was asserted that despite the appellants had been advised as to the deadlines to lodge an appeal to the Court of Final Appeal :

“… we did take some time to consider whether we should further appeal against the said Judgment.It also takes us some time to consider and gather the means of financial resources for the appeal to the Court of Final Appeal.For those reasons, we did not give formal on-line instructions to solicitors whether we are going to appeal against this Judgment despite the fact that they repeatedly reminded us to make up our mind on the timely basis.”

2.Section 33 of the Court of Final Appeal Ordinance, Cap. 484 provides that an application to the Court of Final Appeal for leave to appeal shall be made within 28 days from the date of decision of the Court of Appeal or the Court of First Instance.In the case of HKSAR v Kit Choy Development Limited, HCMA62/2005, Deputy Judge Wright (as he then was), said the follows :

“… an application for a certificate under section 32(2) … of necessity would have to be made immediately after judgment is given: the could would otherwise be functus.Practice Direction 2.2 recognises this. On any realistic construction of section 32 of the Ordinance, that must be so. …”

3.Paragraph 6 of the Practice Direction 2.2 reads :

“6. A failure to make the application in accordance with these directions may make it difficult or impossible for parties to comply with the time limit for applications for leave to appeal to the CFA.”

4.In the present case, there is no suggestion anyway in the Notice of Motion that the appellants are seeking any relief relating to extension of time to apply for the certificate.

5.I also note that the time for leave to appeal to the Court of Final Appeal has not lapsed, I shall proceed to deal with this application on the basis that this court is not functus.

6.Backgrounds and facts of the case are laid out in full in my judgment which I am not going to repeat or recite.

7.According to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 :

“(2) Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial grave injustice has been done.”

8.The point of law stated to be certified is as follows :

“1. Whether the Court, in construing a fact which has been agreed by both the Prosecution and the Defence under section 65C of the Criminal Procedure Ordinance, Cap. 221, could proceed to reject such fact which was inconsistent with the prosecution case and which would have established a material inconsistency in the evidence of the only prosecution witness.

2. Whether, when a Medical Report was admitted under section 65C of the Criminal Procedure Ordinance, Cap. 221, the contents of such Medical report are also thereby admitted by way of implication and shall bind the prosecution in advancing its case.”

9.These two issues have been specifically dealt with in paragraphs 9 to 14 of my judgment. Counsel for the appellant now seeks to rely on the case of HKSAR v Au Kook Yip & Others [2004] 2 HKC 635, to distinguish the case of AG v Wong Pang, CACC797/1998 from the present case, in that this case concerns a medical report whilst that case deals with a mixed out-of-court statement.

10.Counsel for the respondent reiterated what she submitted during the appeal hearing, namely, that the admitted facts pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221 was only in relation to the tendering of the medical report as exhibit in the present case and not what the doctor put down in the medical report relating to an out-of-court statement to him by a witness as to how the injuries came about.It is further submitted that the interpretation and application of section 65C has been fully dealt with in the appeal hearing in accordance with existing authorities and so there does not exist any point of law of great and general importance to be certified.

11.With the greatest respect to counsel, the questions posed concern established principles of criminal procedures and evidence and their general application to the facts of the present case.There is no ambiguity in the law in this area.That questions are misconceived.I refuse to certify that a point of law of great and general importance is involved in the present case and the application for certificate is refused.

Miss Polly Wan, SPP, of Department of Justice, for the Respondent

Mr Joseph J.E. Lee, instructed by Messrs Ho, Tse, Wai & Partners, for the 1^st and 2^nd Appellants