Peter Gerardus Van Weerdenburg and Others v. HKSAR

FAMC Nos 44, 45 & 46 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NOS 44, 45 & 46 OF 2010 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 167 OF 2008)

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

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

Coram : Mr Justice Bokhary PJ

Date of Hearing : 30 August 2010

Date of Decision : 30 August 2010

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

R U L I N G

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

Mr Justice Bokhary PJ :

1.These three leave applications, all arising out of the same trial in the District Court and the same appeal therefrom to the Court of Appeal, are due to be heard by the Appeal Committee on the 16th of next month.  As the judge who will preside at that hearing and with the concurrence of the other members of the Committee, I called for and held this case management hearing.  My reasons for doing so are those which I am about to indicate.

2.There are two bases on which a criminal appeal may be brought to the Court of Final Appeal.  They are provided by s.32(2) of the Court’s statute.  One is to resolve points of law of great and general importance.  And the other is to remedy substantial and grave injustices.  The position is as explained in So Yiu Fung v. HKSAR (1999) 2 HKCFAR 539.  At pp 541I-542A the Court said this :

“This Court’s primary role in the administration of criminal justice is to resolve real controversy on points of law of great and general importance.  For this Court does not function as a court of criminal appeal in the ordinary way.  However the ‘substantial and grave injustice’ limb of s.32(2) exists as a residual safeguard to cater for those rare and exceptional cases in which there is a real danger of something so seriously wrong that justice demands an enquiry by way of a final criminal appeal despite the absence of any real controversy on any point of law of great and general importance.  To obtain leave to appeal under this limb, an appellant has to show – as this appellant had shown – that it is reasonably arguable that substantial and grave injustice has been done.”

And the Court then went on to say (at p.543F-G) that in order for an appeal brought under the “substantial and grave injustice” limb of s.32(2) to succeed, “it must be shown that there has been to the appellant’s disadvantage a departure from accepted norms which departure is so serious as to constitute a substantial and grave injustice”. 

3.This prosecution was of five persons including these three applicants.  There were 18 charges on the charge sheet.  The prosecution’s case depended on the evidence of immunised witnesses.  Shortly stated, the prosecution’s main allegations were of bribing tour guides to bring their tour groups to Tse Sui Luen Jewellery’s showrooms and of false accounting and hoodwinking the Revenue to disguise those bribes.  The first 14 charges were of conspiracy while the last four, each in the alternative to the 13th charge, were of theft.  Convictions were entered : against the 1st applicant on the 1st, 2nd, 9th, 10th and 14th charges; against the 2nd applicant on the 1st and 2nd and the 9th to 14th charges; and against the 3rd applicant on the 1st and 2nd and the 9th to 12th charges.  All of those convictions were affirmed by the Court of Appeal.  That was by a majority as far as the convictions against the 1st applicant on the 1st, 2nd, 9th and 10th charges are concerned.  Otherwise the Court of Appeal was unanimous.

4.As far as the 1st applicant is concerned, he seeks leave to appeal only against those of his convictions which were affirmed by a majority.  The other two applicants seek leave to appeal against all of their convictions.

5.On the written application filed on his behalf, each applicant seeks leave to appeal on – and only on – the “substantial and grave injustice” basis.  The 1st applicant complains of substantial and grave injustice on two grounds.  Shortly stated, they are of (i) failure to consider material evidence which showed that he had not joined or intended to join the alleged conspiracies and (ii) the acceptance of unsupported accomplice evidence against him.  The 2nd applicant complains of substantial and grave injustice arising out of the “coaching” of prosecution witnesses by the Independent Commission Against Corruption.  So does the 3rd applicant.  But he also complains of substantial and grave injustice arising out of failure to resolve inconsistencies in the evidence of prosecution witnesses.

6.It was a lengthy trial, lasting for over half a year from 14 August 2007 to 7 March 2008.  When the District Court Judge gave his reasons for verdict, it took him two days to read them out, on 24 and 25 April 2008.  Those reasons run to 1041 paragraphs.  The hearing in the Court of Appeal lasted from 15 to 22 March 2010.  And the judgment which the Court of Appeal handed down on 31 March 2010 runs to 391 paragraphs.

7.Without pre-judging anything, I will say this.  On the written applications as they now stand, there is a real risk that the applicants are in effect asking the Court of Final Appeal to do what it will not do, namely act as a court of criminal appeal in the ordinary way.  That is not the function of this or any other final court in any system like ours.

8.The matters which the applicants raise are, as I have already noted, these : (i) the treatment of evidence favourable to the defence; (ii) the approach to unsupported accomplice evidence against an accused; (iii) what may and may not be done by law enforcement agencies when preparing their witnesses; and (iv) the approach to inconsistences in the evidence of prosecution witnesses.  On any matter like these, one begins by asking if there is an accepted norm and, if so, what it is.  Even where there is an accepted norm, it is not every departure therefrom that will result in intervention by the Court of Final Appeal.  An appeal on the “substantial and grave injustice” basis will succeed only if such departure is so seriously to the appellant’s disadvantage as to constitute a substantial and grave injustice.  The true impact of problems at trial is essentially for the intermediate appellate court to assess.  So there is a high hurdle for applicants to surmount when they seek leave on the “substantial and grave injustice” basis.

9.It is therefore very much in the best interests of applicants carefully and precisely to identify what they invoke as accepted norms.  That is the first step.  The next step is to identify, also with care and precision, the departures from accepted norms of which they complain.  Such are the steps to be taken for the purpose of seeking leave to appeal under the “substantial and grave injustice” limb of s.32(2).  If the existence of any accepted norm invoked is disputed, it is possible that such dispute will generate a question or questions of law – perhaps of great and general importance so as to justify leave to appeal under the “point of law” limb of s.32(2).  

10.I have held this case management hearing mainly to draw the attention of these parties – and of the parties in future cases – to those steps and that possibility.  Whether my having done so will lead to any amendments to the written applications in the present case remains to be seen.  If any amendments are sought, that should be done sooner rather than later.  This case management hearing also covered a number of what are sometimes called “housekeeping matters”, but I need not repeat now what I said about those in the course of the hearing.

Ms Alice Lee (instructed by Messrs Haldanes) for the 1st applicant

Mr Graham Harris (instructed by Messrs K B Chau & Co.) for the 2nd applicant

Ms J Y Yan (of Messrs Simon C W Yung & Co.) for the 3rd applicant

Mr Alex Lee (of the Department of Justice) for the respondent