HKSAR v. Chan Hoi Tat
Read the full judgment text of CACC 447/2010 on BabelCite. This Court of Appeal judgment was delivered on 31 January 2012 before Cheung JA, Hartmann JA, Barnes J.
Criminal law – leave to appeal – certificate for Court of Final Appeal – s.32(2) Hong Kong Court of Final Appeal Ordinance – alibi evidence – lateness of alibi notice – adverse comments – burden of proof – Browne v Dunn – great general importance – fact-specific – Application for leave to appeal to Court of Final Appeal by certificate – Applicant convicted of child pornography, criminal intimidation, and indecent assault – Alibi evidence admitted late during trial – Trial judge considered unexplained lateness in evaluating alibi witness – Court of Appeal refused leave to appeal conviction – Applicant sought certificate on points of law concerning lateness of alibi notice and adverse comments – Whether points of law of great and general importance – Held: Proposed points are fact-specific, not engaging legal principles – No adverse comments made – Application refused.
Legal issues: Leave to appeal – certification for Court of Final Appeal
Outcome: Application for certificate to appeal to the Court of Final Appeal refused.
Cited by 3 cases
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CACC 447/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 447 OF 2010 (ON APPEAL FROM DCCC 488 OF 2010) -----------------------
------------------------ BETWEEN
------------------------ Before : Hon Cheung, Hartmann JJA and Barnes J in Court Date of Hearing : 20 January 2012 Date of Decision : 20 January 2012 Date of Handing Down Reasons for Decision : 31 January 2012 ------------------------ REASONS FOR DECISION ------------------------ Hon Barnes J (giving the judgment of the Court) : The application 1.The applicant was found guilty after trial of the following offences :
2.The applicant’s application for leave to appeal against conviction was dismissed on 27 September 2011, with reasons handed down on 18 October 2011. 3.By a Notice of Motion dated 25 October 2011, the applicant applies under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 for a certificate to certify that points of law of great and general importance were involved. The stated points of law 4.The stated points of law are as follows :
The applicant’s submission 5.The crux of the submission of Mr McGowan, counsel for the applicant, was that since there was no opposition to the lateness of the application and neither the court nor the prosecutor had sought any explanation for the “lateness”, was it correct for the trial judge (as the fact finder) to reject such alibi evidence. Mr McGowan submitted that if the applicant/defendant was required to “volunteer” an explanation for the “lateness”, such requirement, as a matter of law, would offend the principles enunciated in Browne v Dunn[1]. 6.Mr McGowan submitted that these matters raise questions of law of general application and significant importance which should be considered and resolved by the Court of Final Appeal. The respondent’s response 7.Miss Agnes Chan, Assistant Director of Public Prosecutions, submitted that no points of law arose out of the four points stated by the applicant. She submitted that it was a fact that the application to adduce alibi evidence was late. No improper or adverse comments were made by the trial judge towards the applicant. She further submitted that this court accepted the trial judge was well aware of the burden of disproving an alibi is on the prosecution, the trial judge was entitled to reject the evidence of the alibi witness. Discussion 8.As stated in para 33 of our judgment “[i]f DW[1]’s evidence was true or could have been true, such alibi evidence would have thrown doubt on the evidence of Miss X in relation to the indecent assault at the Emerald House.” The trial judge had to evaluate the credibility and reliability of this alibi witness. Whilst we do not have the statements of Miss X to the police in relation to this case, the fact is that out of the five charges, the 5th charge was the only one in which a date (5 August 2005) was mentioned. The alibi witness gave evidence of an event (a hospital visit) which occurred on 5 August 2005. 9.It was a fact that Miss X had already concluded her evidence-in-chief and was in the course of being cross-examined when an application was made to the trial judge to admit the alibi evidence. No explanation was given for the lateness. While the burden of disproving alibi evidence lies on the prosecution, the trial judge is entitled to consider the unexplained lateness of the alibi evidence in the circumstances of the present case when evaluating the evidence of the alibi witness — particularly when the alibi witness was relating to an incident which occurred five years ago. The trial judge did not reject the alibi evidence purely on the lateness of the alibi evidence. He made no adverse comment on the lateness, he merely took that fact into account in his consideration. Conclusion 10.We are of the view that the points of law are not engaged in the present case. Further, since the matter is fact specific, we do not regard that they satisfy the great and general importance requirement. Accordingly the application is refused.
Miss Chan Wing Han Agnes, ADPP of the Department of Justice, for the respondent Mr James HM McGowan, instructed by Jimmie K.S. Wong & Partners, for the applicant [1] Browne v Dunn (1894) 6 R 67 Please refer to FAMC1/2012 for the relevant appeal(s) to the Court of Final Appeal. |
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