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)

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Between:

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

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Mr Justice Bokhary PJ :

1.Mr Van Weerdenburg seeks leave to appeal against those of his convictions which the Court of Appeal affirmed only by a majority, namely his convictions on Charges 1, 2, 9 and 10. He complains of substantial and grave injustice arising on two grounds. Of these grounds, the first – which pertains to all the convictions against which he seeks leave to appeal – runs thus. The District Court judge had failed adequately to consider material evidence which tended to show that Mr Van Weerdenburg had no intention to join and had not joined the alleged conspiracies. And the Court of Appeal should have intervened for such failure. As for the second ground put forward on Mr Van Weerdenburg’s behalf – which ground pertains to Charges 9 and 10 only – it is that the Court of Appeal had erred in upholding the District Court judge’s acceptance of unsupported accomplice evidence.

2.On the convictions which Mr Van Weerdenburg now challenges, McMahon J dissented in his favour on the first ground.  In our view, it is reasonably arguable that there is an accepted norm, that it is reflected by McMahon J’s dissent and that there has been to Mr Van Weerdenburg’s disadvantage a departure from such norm so serious as to constitute a substantial and grave injustice.  On that basis and in respect of each of the four convictions which he seeks to challenge, we grant Mr Van Weerdenburg leave to appeal to the Court of Final Appeal under the “substantial and grave injustice” limb of s.32(2) of the Court’s statute.  We grant him such leave only on that basis because we do not think that the contentions made on his behalf in regard to unsupported accomplice evidence warrant a grant of leave to appeal to the Court of Final Appeal.

3.Like Mr Van Weerdenburg, the other two applicants seeks leave under the “substantial and grave injustice” limb of s.32(2).  Mr Tse does so on one ground, which is essentially that the Independent Commission Against Corruption had “coached” prosecution witnesses while Mr Wong does so on that ground plus another, namely that the lower courts had failed to resolve inconsistencies in the evidence of prosecution witnesses.  There is no doubt as to the accepted norms in regard to those matters.  Prosecution witnesses should not be coached.  And inconsistencies in the evidence of prosecution witnesses must receive adequate consideration. The Court of Appeal took the view that what occurred in the present case did not amount to coaching.  We see no reasonable prospect of the Court of Final Appeal taking a different view.  Whether inconsistencies in the evidence of prosecution witnesses have received adequate consideration by the trial court is quintessentially a matter for the intermediate appellate court to decide. We see no reasonable prospect of the Court of Final Appeal intervening for want of such consideration in the present case.  Despite the skill with which their applications have been argued, we refuse Mr Tse and Mr Wong leave to appeal to the Court of Final Appeal.

4.Before parting with these applications, we consider it appropriate to say something of a general nature for future guidance.  This leave hearing is the fourth one which we have held this week.  For this week’s four leave hearings, the papers placed before us form, duplicates and all, a combined pile some eight feet high.  And that is even after the contribution made to the pile by this morning’s documents had been reduced in consequence of case management directions.  In order to complete oral hearings within a reasonable time and at reasonable expense to the parties, we have to read the papers beforehand.  But there is a limit to the time available for such reading.  No document should be placed before us unless it is necessary and the reason why it is necessary is readily apparent or can be simply explained.  It is essential that the parties to leave applications make their Notices of Applications and any skeleton arguments coherent, clear and concise.  If there is any merit in his position, a party should be able to do that.

Mr Blanchflower, SC and Ms Alice Lee (instructed by Messrs Haldanes) for the 1st applicant

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

Ms Maggie Wong (instructed by Messrs Simon C W Yung & Co.) for the 3rd applicant

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