Ma Ho Fai v. HKSAR

FAMC No. 41 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 41 OF 2011 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 30 OF 2011)

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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 Chan PJ:

1.The applicant applies for leave to appeal against his conviction of theft on both the substantial and grave injustice limb and the point of law limb.

2.The evidence against the applicant came from PW1 and a host of circumstantial evidence. It is pertinent for the purpose of this application to refer to the evidence which was accepted by the magistrate.

3.The applicant was seen by PW1, a resident in Peng Chau, to have stolen a brassiere from her neighbour’s washing line. His wallet containing his name card, photographs and other items was found on top of the stolen item in a refuse bin at a nearby collection point. In her statement to the police a few hours later, PW1 gave a description of the applicant, his hair style, his clothes and his spectacles and mentioned a white reusable bag he was carrying at the time. This description matched what appeared in the CCTV recording retrieved from the elevator of the applicant’s residence in Discovery Bay. The applicant was also seen by the operator of the ferry from Peng Chau to Discovery Bay as having difficulty in finding enough change to pay for the ferry fare. However, when the applicant reported loss of his wallet, he told the police he lost it in Discovery Bay, but did not mention that he had been to Peng Chau earlier that day. Finally, the applicant was identified by PW1 in the street when he was on his way back to the Peng Chau police post to collect his wallet, notwithstanding that at that time, he had changed his clothes and taken off his spectacles. The police did not hold any formal identification parade.

4.The applicant did not give evidence but called his wife to testify as to what happened when they went to the Peng Chau police post to collect his wallet. Needless to say, the identification evidence was hotly disputed. But it is fair to say that apart from PW1’s evidence, the circumstantial evidence was very strong. At the end of the day, the magistrate was satisfied to the requisite standard that PW1 was honest and reliable and that the applicant was the person who committed the theft in Peng Chau.

5.In submitting that the applicant has suffered substantial and grave injustice, Mr Martin Lee SC contends that the trial magistrate was wrong in handling the identification evidence and the appeal judge had failed to correct the magistrate’s errors. Counsel levelled various attacks on PW1’s evidence suggesting that PW1 had lied when she denied she had looked at the applicant’s photographs in the wallet and that she was unreliable at the street encounter because she appeared to be saying she did not know what she was doing at the time. Mr Lee also complains that the magistrate had failed to hold that this was a case of a “fleeting glance” and that the street encounter when the applicant was identified by PW1 was engineered by the police. It is submitted that the failure to conduct a formal identification parade had deprived the applicant of the chance of a negative identification by PW1.

6.These submissions had been raised before the trial magistrate and argued again fully and at length before the appeal judge. We do not propose to deal with these submissions. We are satisfied that the magistrate and the judge were well aware of the inconsistencies and weaknesses in the prosecution evidence raised by these submissions and had carefully considered and sufficiently dealt with them in the Statement of Findings and the judgment. They were perfectly entitled on the evidence to have come to the conclusions which they did. As we have previously emphasized, the Court of Final Appeal does not function as a second appellate court and certainly not as a third tier of trial court. The test for granting leave is not, as counsel seems to suggest, whether the conviction was unsafe or unsatisfactory, but whether there is any departure from accepted norms so serious as to require intervention by the final court. On the evidence, we do not think it is reasonably arguable that there is any departure from accepted norms or that the applicant has suffered any substantial and grave injustice.

7.Mr Lee also raises two points of law which he submits are of great and general importance. They relate to the failure of the police to hold a formal identification parade. Counsel relies on the statutory provisions in the English Police and Criminal Evidence Act 1984 and the decided cases on these provisions. He submits that the Hong Kong courts should adopt a similar approach and hold any breach on the part of the police to be unlawful. We do not think these English provisions and authorities are helpful to the applicant’s case. First, there is no equivalent statute in Hong Kong. Secondly, the possible effect of a failure to hold a formal identification parade on the accused must, as Mr Lee accepts, depend on the facts of each case and the determining factor must be whether there has been any unfairness to the accused. Having regard to the circumstances of this case, the magistrate and the judge did not consider that there is any unfairness to the applicant in the police not holding a formal identification parade in this case. We see no reason to disagree with their conclusions.

8.For these reasons, we are of the view there is no merit in this application which must be dismissed.

Mr Martin Lee SC and Mr Joseph Lee (instructed by Messrs JCC Cheung & Co) for the applicant

Mr Martin Hui (of the Department of Justice) for the respondent