HKSAR v. Yeung Ka Ho and Another

CACC207/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 207 OF 2011

(ON APPEAL FROM DCCC NO. 884 OF 2010)

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Before: Hon Yuen, Kwan and Chu JJA in Court

Date of hearing and Judgment: 12 June 2012

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JUDGMENT

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Hon Yuen JA (giving the judgment of the Court):

1.On 25 May 2012 we dismissed the Applicants’ application for leave to appeal against conviction on one charge of attempting to pervert the course of justice and one charge of misconduct in public office.

2.By notice of motion dated 31 May 2012 the applicants sought a certificate pursuant to s 32(2) HKCFAO Cap 484 that a point of law of great and general importance was involved in the appeal.  The question was put as follows:

“Does the prosecution have to prove the provenance of an audio recording in order to produce it into evidence”?

3.The notice of motion was set down for hearing at 9:30 am on 12 June 2012.  In other words, there was nearly a fortnight in which submissions should have been prepared, and sent to the respondent for reply, and both parties’ submissions could then be properly considered by the court well before the hearing. 

4.However nothing was received from the Applicants until one hour before the close of business the day before, when a 16-page skeleton submissions and 4 authorities were received by the court.  We wish to say that this is not intended to be a criticism of Mr Charles Chan who informed us that he was only instructed late on Friday, and we of course accept what he says.     

5.The late delivery of the applicant’s submissions meant not only that the members of the court had to interrupt their other work in order to consider these submissions as soon as they arrived, but also there was no reply by the respondent to the submissions until this morning.  (Earlier in the day yesterday, the court had received the respondent’s skeleton submissions but they had obviously been written without Mr Man first having seen the applicants’ submissions). The hearing today has been set down for half an hour only, and the members of the court have other court commitments immediately thereafter.

6.This is completely unacceptable.  Practitioners, whether in civil or criminal cases, have a duty to the courts to prepare their cases in good time.  The respondent should not be rushed into proffering an oral reply on the day, nor should the court be distracted from and interrupted in its other work, and be rushed into reading submissions hurriedly without the benefit of considering the respondent’s reply.  It is only common sense that the more the court is rushed due to lack of timely preparation by practitioners, the less prepared the court would be, and if errors are made, it is the parties and the administration of justice that suffer.

7.We have considered the submissions received yesterday and we have heard what Mr Man has added by way of reply this morning.  Of course video recordings are different from audio recordings, but when the audio recordings are proved to be original and untampered with, such that their authenticity is proven, we do not see any grounds justifying the applicants’ submission that the provenance of the recordings has to be proved before they can be admissible.

8.Accordingly we do not see that a point of law of great and general importance is involved in the appeal and we would dismiss the application for leave. 

Mr Charles J Chan, instructed by Munros, for the Applicants

Mr Jonathan Man, ADPP of the Department of Justice, for the Respondent