HKSAR v. Muhammad Riaz Khan

CACC125/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 125 OF 2003

(ON APPEAL FROM HCCC NO. 160 OF 2002)

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BETWEEN

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Before : Hon Stock VP, Cheung JA and McMahon J in Court

Dates of Hearing : 2 July 2010

Date of Judgment : 2 July 2010

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J U D G M E N T

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McMahon J (giving the judgment of the Court) :

1.By its judgment of 22 May 2007 this court dismissed the applicant’s application for leave to appeal his conviction of an offence of conspiring to traffic in a dangerous drug contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 and sections 159A and 159C of the Crimes Ordinance, Cap. 200.

2.The applicant now applies out of time for a certificate pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 454 certifying two points of law arising from the judgment as being of great and general importance.  They are :

“1. (a) Did the Court of Appeal apply the correct legal principles in deciding whether the unconstitutionally obtained evidence (i.e. the audio-video recorded surveillance evidence, including the transcript of the recorded conversation) should have been excluded?

(b) Applying the correct legal principles, should the surveillance evidence have been excluded in this case?

2.        Where an undercover agent has reasonable grounds to suspect a person to be involved in a continuing criminal conspiracy, under what conditions will the agent’s conduct during a meeting with the suspect compromise the latter’s right of silence, thereby warranting the exercise of the residual discretion to exclude the relevant evidence of the agent?”

3.In our view on the evidence provided to us by the applicant no sufficient reason has been given for the period of delay in bringing this application.  It is thirty-one months’ out of time. 

4.We have taken into account the submissions made to us on the merits of the application and in our judgment the points of law proposed by the applicant are resolvable by legal principles established by the settled law of this jurisdiction.

5.The application for a certificate is dismissed.

Mr David Leung, SADPP of the Department of Justice, for HKSAR

Mr James W. Campbell and Mr Simon N.M. Young, instructed by Messrs Pang, Kung & Co., for the Applicant

Leave to appeal to Court of Final Appeal under the "point of law" granted by Court of Final Appeal to the applicant. Please refer to FAMC52/2010 dated 4 January 2010