HKSAR v. Ma Ho Fai

HCMA30/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 30 OF 2011

(ON APPEAL FROM ESCC 3511 OF 2010)

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BETWEEN

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Before: Hon Barnes J in Court

Dates of Hearing : 22 July 2011

Date of Judgment: 22 July 2011

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J U D G M E N T

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1.The applicant was found guilty after trial of one count of theft, contrary to section 9 of the Theft Ordinance, Cap. 210. He was fined $3,000.  The applicant appealed against the conviction and I dismissed the appeal on 12 July 2011.

2.By a Notice of Motion, the applicant applies under section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 for a certificate to certify that a point of law of great and general importance was involved in my decision.

3.Sections 32(2) and (3) of Cap. 484 provides:

“(2) Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done.

(3) Where the Court of Appeal or the Court of First Instance declines to certify as mentioned in subsection (2), the Court may so certify and grant leave to appeal.”

4.The alleged point of law as amended is amended so-framed:

“Where an identification parade should have been held by the police during the investigation of a crime, but was not held for reasons not attributable to the accused, is it the duty of a court sitting without a jury to direct itself that the accused was thereby deprived of a powerful point in his favour, in that he had lost the potential advantage of an inconclusive identification parade?”

5.The question posed is based on the premise that “an identification should have been held but was not held”, which was totally contrary to my finding.  I found (at para. 52 of my judgment) that on the facts of the present case there was no need for the police to hold a formal identification parade.  Whilst I did not rule out the possibility that in certain cases, the police may still have to hold a formal identification parade after a “street identification”, the present case was not one of them.

6.In my judgment, the question posed does not amount to a point of law involved in my decision, let alone a point of law of great and general importance.

7.I therefore refuse the application.

Mr Martin Hui, Ag. SADPP of the Department of Justice, for the Respondent

Mr Martin C.M. Lee, instructed by Messrs JCC Cheung & Co., for the Applicant

Application for leave to appeal against conviction was dismissed. See FAMC41/2011 dated 6 December 2011