HKSAR v. Ng Mei Fa

CACC420/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 420 OF 2009

(ON APPEAL FROM DCCC 503 OF 2008)

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Before : Hon Yuen JA, Lunn and Saw JJ

Date of Hearing : 22 December 2010

Date of Judgment : 22 December 2010

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JUDGMENT

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Hon Lunn J (giving the Judgment of the Court) :

1.This is an application for leave to appeal to the Court of Final Appeal pursuant to section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 (“ the Ordinance”).

2.On 10 November 2010, we dismissed applications made on behalf of the applicant for leave to appeal against conviction and sentence (“the judgment”). It was submitted on behalf of the applicant, pursuant to section 32(2) of the Ordinance, that two points of law of great and general public importance are involved in that decision.  Mr Jenkyn‑Jones has identified those issues in two questions :

(1)       Question 1—

“Is it incumbent on a judge, whether ex propriu motu [of his own motion], upon application by counsel or by way a review of any earlier ruling in the course of a trial), to adjourn or stay the proceedings in circumstances where evidence arising in the course of the trial revealed prejudice and unfairness to the defendant due to the non-availability of a prosecution witness to be cross-examined on issues in dispute which are directly relevant to and determinative of the subject matter of the offence alleged?” [translation added]

(2)        Question 2—

“Can conduct which consists of the transmission by one party of a document to a 3^rd party for their signature and the subsequent return to and onward transmission of the signed document by the 1^st party to another amount to an adverse admission, namely confirmation and verification of the accuracy of the content of the document, against the 1st party?”

As to Question 1

3.The context in which the point posed in Question 1 arises is the determination by the judge at trial to refuse an application for stay of the proceedings made at the commencement of the trial on behalf of the applicant, on the basis that the prosecution were unable to make available for cross-examination two proposed prosecution witnesses, and to receive and consider all the other evidence in those circumstances.  The judge received evidence and submissions over no less than seven hearing days and ruled on the eighth day (see paragraphs 18 and 19 of the judgment).  Not surprisingly, in those circumstances, although the application for stay was not renewed on behalf of the applicant, it was clear from his reasons for verdict that the judge remained very much alive to the potential prejudice to the applicant in light of the evidence actually adduced at trial, in particular that arising from the absence of Ms Hu Li Li (see paragraphs 38 to 45 of the judgment and paragraphs 112 to 116 of the reasons for verdict).

4.No point of law of great and general importance arises.  There is no dispute that the applicant had a constitutional right to a fair trial.  The judge had a duty, whether or not assisted or prompted by renewed applications made on behalf of the applicant, to ensure that the applicant was afforded that right, namely that the trial be “as fair as the court can make it”, provided always that it remained a fair trial.

As to Question 2

5.The context in which the point posed in Question 2 arises is the evidence led at trial of requests made by her assistant, Ms Suky Ng, in reality that confirmation be given that the monies set out in schedules given by her to the applicant were accurate as to the monies received by the Mainland factory and of the applicant’s return of those schedules signed by her husband to Ms Suky Ng (paragraphs 51 to 53 of the judgment).  There was no dispute that the amounts set out in the schedules represented a significant shortfall in the monies provided to the applicant for that purpose and the amount described as received by the Mainland factory.

6.Clearly, the matters arising, in particular the inferences adverse to the applicant that it was permissible to draw, were very fact sensitive.  Of general relevance, was the evidence in respect of the role of the applicant in the scheme by which monies were obtained by cash cheques signed by Mr Takahashi and the mechanism for the delivery to and receipt by the Mainland factory of monies other than by telegraphic transfer.  Of particular relevance, was the evidence of the applicant’s response to Ms Suky Ng’s request.  No point of great and general importance arises.  Accordingly, the application is refused.

Ms Alice Chan, SPP of the Department of Justice, for the Respondent

Mr T.R.W. Jenkyn-Jones, instructed by Messrs Ip, Kwan & Co., for the Applicant

Applicant's leave to appeal to Court of Final Appeal. Please refer to FAMC95/2010 dated 14 October 2011