Ma Chor Ming and Another v. Hong Kong Special Administrative Region

FAMC No. 45 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 45 OF 2009 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 909 OF 2008)

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Between:

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Appeal Committee:     Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing:   22 September 2009

Date of Determination:  22 September 2009

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

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Mr Justice Chan PJ:

1.This application for leave to appeal relates only to the conviction of assaulting a police officer in the due execution of his duty against the 1^st applicant (the 3^rd charge) and the 2^nd applicant (the 4^th charge). The incident giving rise to these and other charges occurred in a protest staged by the applicants and others outside the now demolished Queen’s Pier in Central.

2.With regard to the point of law limb, 2 questions are sought to be certified. They relate to the evidential value of the facts admitted pursuant to s.65C of the Criminal Procedure Ordinance, Cap. 221 and the effect of that section.

3.The first thing to determine is what has been admitted. (See AG v. Wong Pang [1979] HKLR 61 at 63.) In the present case, it is plain that what was admitted were the injuries sustained. The better practice would be simply to admit that the injuries were sustained rather than the medical report. What PW7 was alleged to have told Dr Tong, although stated in the medical report, was clearly not part of the admitted facts. There is thus no question of that being conclusive evidence and binding on the prosecution. This case is plainly quite different from the situations in R v Chan Chun Man [1986] HKC 261, or HKSAR v Au Koon Yip [2004] 2 HKC 635 or HKSAR v Katyal Karan, unreported, HCMA 220 of 2009 where the parties in these cases purported to dispute the fact which was expressly admitted or agreed. Counsel’s argument on this ground therefore cannot be sustained.

4.On the substantial and grave injustice limb, counsel relies on the magistrate’s error in attributing a mistake made by PW7 to be that of Dr Tong and submits that this casts doubt on the magistrate’s rejection of the doctor’s evidence on what PW7 had told him during the medical examination. The fact is that the doctor did make a mistake in respect of another aspect of PW7’s injuries and the magistrate’s error in referring to a different mistake was clearly not material to her assessment of the doctor’s evidence. In his written submission on this ground, counsel also refers to the discrepancies in the evidence of the police witnesses. This ground is also not reasonably arguable. The magistrate was alerted to these discrepancies and had taken them into consideration before coming to her conclusion.

5.As to the question of the time for seeking a certificate for an appeal to the Court of Final Appeal, this does not arise in the present case.

6.Accordingly, this application is dismissed.

Mr Joseph J Lee (instructed by Messrs Ho, Tse, Wai & Partners assigned by the Legal Aid Department) for the applicants

Mr Cheung Wai-sun, SADPP and Miss Winnie Lam, SPP (of the Department of Justice) for the respondent