HKSAR v. Fung Ka Fai

CAC C 308/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 308 OF 2011

(ON APPEAL FROM DCCC NO. 136 OF 2011)

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BETWEEN

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Before: Hon Stock VP in Court

Date of Hearing: 19 April 2012

Date of Judgment: 19 April 2012

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J U D G M E N T

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Hon Stock VP:

1.This is an application for leave to appeal a conviction upon a charge of conspiracy to rob. This applicant was convicted of that offence in July 2011 by Deputy District Judge Chow. It was a joint charge in which the first named defendant was Ma Chi Sang.

2.One of the grounds of the application for leave is the suggestion by this applicant that Ma had sent a letter to the court at the time of this applicant’s trial, exonerating this applicant from any knowledge of the plan to rob the premises in question.  This Court caused inquiries to be made of counsel who represented this applicant at trial.  Counsel says that he received no instructions about the letter.  Be that as it may, as a result of further inquiries by this Court a letter was received by this Court from the Department of Legal Aid dated 13 March 2012 disclosing the fact that a letter by Ma Chi Sang to the District Court was provided to the Legal Aid Department by the court clerk on 29 March 2011. That letter seeks to absolve the applicant of complicity in the offence.  One might have hoped that it would at the time have found its way to those representing the applicant but it would seem that that did not happen.

3.The explanation given by the Legal Aid Department is that Ma said that the letter was merely for the purpose of plea negotiation and that Ma had not given any instructions to disclose the letter to those acting for this applicant. 

4.A hearing was held on 20 March this year and in attendance was Mr Yim of the Legal Aid Department who agreed to consider a fresh application by the applicant for legal aid in light of the discovery of Ma’s letter.  The applicant was advised to submit a fresh application for legal aid.  This he did.  But by notice dated 10 April 2012 the Director has refused the application.  This is not a particularly satisfactory state of affairs and this Court is left without the benefit of an investigation on behalf of the applicant. 

5.I have considered whether to order the grant of legal aid in any event but in the light of the history of this matter I do not think that that is the appropriate course to take.  I note that earlier this year the applicant made an application to the Bar Free Legal Service which was under consideration at the time of the hearing on 20 March.  I now hope that the Bar Free Legal Service will resume its consideration of the application, noting the desirability of this Court being provided with assistance at the next hearing.

6.Too much time has now passed in consideration of this leave application and it is time to move on. Accordingly, I grant the applicant leave to appeal his conviction and direct that the matter be set down for hearing with 2 hours reserved.  I direct further that there should be a body order bringing up Ma Chi Sang for the hearing of the appeal.  If the Bar Free Legal Service agrees to take up this matter no doubt they will wish to find out from the applicant’s several previous legal advisers such information as may be of assistance.

Miss Hermina Ng, SPP (Ag.) of the Department of Justice, for the Respondent

Applicant (FUNG KA FAI) – acting in person