Kosar Mahmood v. HKSAR

FAMC No. 31 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 31 OF 2012 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
CACC NO. 274 OF 2010)

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Between:

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DETERMINATION

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Chief Justice Ma:

1.After hearing submissions from counsel, we dismissed this application for leave to appeal with reasons to follow.  These are our reasons.

2.The applicant was convicted before Deputy High Court Judge Andrew Chan and a jury of trafficking in dangerous drugs.  He was sentenced to imprisonment for 21 years. The issue at the trial was one of credibility. Customs and Excise officers gave evidence that they had seen the applicant place a bag containing the drugs into the boot of a car immediately before they arrested him. The applicant denied the entire prosecution case and accused the Customs and Excise officers of framing and brutalising him.

3.The Court of Appeal dismissed his appeal against conviction and sentence.[1] He now applies for leave to appeal on the substantial and grave injustice ground.  Mrs Mahinder Panesar, who appears on his behalf, has filed an application for leave running to 40 pages and essentially seeks to re-argue the points which failed in the Court of Appeal.   Thus, she seeks leave to complain that certain questions put by the judge “adversely affected or destroyed [the applicant’s] credibility before the jury”; that prosecuting counsel asked questions which were “unfair and/or improper” and also made a closing speech which aggravated the unfairness; and that the judge’s summing-up was unfair or unbalanced.

4.Every point was properly disposed of by the Court of Appeal.  Criticisms of the Judge’s questions and directions were rejected as based on selective passages taken out of context or as otherwise unjustified, his Lordship’s directions being found to be fair and balanced as a whole.  The Court also examined the criticisms of prosecuting counsel and their impact on the fairness of the trial, finding that any such impact was minimal or adequately compensated for by the Judge’s directions.

5.Since the earliest days of its establishment,[2] this Court has emphasised that the “substantial and grave injustice” ground for granting leave is not intended to cast the Court in the role of a second Court of Appeal.  It was made clear in So Yiu Fung v HKSAR, [3] that:

“This Court’s primary role in the administration of criminal justice is to resolve real controversy on points of law of great and general importance. For this Court does not function as a court of criminal appeal in the ordinary way. However the ‘substantial and grave injustice’ limb of s.32(2) exists as a residual safeguard to cater for those rare and exceptional cases in which there is a real danger of something so seriously wrong that justice demands an enquiry by way of a final criminal appeal despite the absence of any real controversy on any point of law of great and general importance.”[4] ...

“Reviewing convictions to see if they are safe and satisfactory is entrusted to the intermediate appellate court. If the matter proceeds further to this Court, our task does not involve repeating that exercise. We perform a different one. In order for an appeal brought under the ‘substantial and grave injustice’ limb of s.32(2) of the Hong Kong Court of Final Appeal Ordinance to succeed, it must be shown that there has been to the appellant’s disadvantage a departure from accepted norms which departure is so serious as to constitute a substantial and grave injustice.”[5]

6.We wish to stress that in all future applications on the substantial and grave injustice ground, the application for leave to appeal must identify the specific way in which it is submitted that the court below has departed from established legal norms; and why such departure is so seriously wrong that justice demands a hearing before the Court of Final Appeal notwithstanding the absence of any real controversy on any point of law of great and general importance.  It will simply not be sufficient merely to set out the same arguments that were canvassed in the court below.

7.If the application for leave to appeal does not disclose such grounds or does not provide a reasonably arguable basis for such submissions, it may expect to be dismissed summarily under Rule 7 of the Court’s rules.

8.The present application is precisely what the “substantial and grave injustice” ground does not cater for.  It represents no more than an attempt to re-argue points disposed of by the Court of Appeal within the proper ambit of its appellate function, in the hope that the Court of Final Appeal might see things differently.  It does not come near to satisfying the requirements for the grant of leave and must be dismissed.

Mrs M Panesar instructed by George Chan & Co and assigned by the Legal Aid Department for the applicant

Mr Alex Lee DDPP (Ag) of the Department of Justice for the respondent