HKSAR v. Posso Vergara Cristhian Enrique

CACC 538/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 538 OF 2011

(ON APPEAL FROM HCCC 252 OF 2011)

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REASONS FOR JUDGMENT

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Hon Barnes J (giving the Reasons for Judgment of the Court):

1.On 13 December 2011, the applicant was convicted, after a re‑trial before Line J and a jury, of one count of trafficking in dangerous drugs and was sentenced to eight years imprisonment.

2.On 16 July 2013 we dismissed his application for leave to appeal against conviction and we handed down our reasons on 25 July 2013.

3.By a Notice of Motion dated 31 July 2013, the applicant applied under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 for a certificate to certify that there was a point of law of great and general importance involved in our decision.

4.On 15 November 2013, we dismissed his application.  We indicated we would give our reasons in due course, which we now do.

5.As to the “circumstances giving rise to a point of law of great and general importance” which the applicant said was involved in our decision, the applicant filed an affirmation (also dated 31 July 2013) in support when he filed the Notice of Motion.  It is not necessary to reproduce what the applicant had said in his affirmation.  Suffice it to say that the applicant expressed his dissatisfaction in this court’s failure “to appreciate the significance of [his] complaints about the background of the case and the police wrongdoings.”

6.The applicant basically reiterated some of the grounds of appeal against conviction which he had put before us when he applied for leave to appeal against conviction.  The applicant raised again the matter of the search warrant (Ground (1)) and the alleged incompetence on the part of his trial counsel (Ground (5)).  He disagreed with the findings of this court on those issues.

7.Further, the applicant raised the issue of “DNA”, saying that there was no analysis to determine whether his DNA was found on the plastic bags containing the dangerous drugs.  The applicant also claimed that he is now in possession of “rock solid evidence” to show that the police officers were “connected” with “Michael”—contrary to their testimony under cross‑examination during the trial.

8.The applicant filed yet another document dated 11 November 2013, in which he listed out what he considered to be the point of law of great and general importance.  Again there is no need to recite in full the “point” raised by the applicant.  Suffice it to say that the “point” referred basically to the issue of the alleged incompetence on the part of his trial counsel—with particular reference to the failure to call “Michael” to give evidence.  The applicant disagreed with our judgment on that issue.

9.In that same document, the applicant also complained about the use of his admission under caution during the trial on the basis that the admission was obtained under inducement.  He asked this court to “assign a counsel and [a] solicitor” to represent him in pursuing this application.  We declined to do so.

10.Before us, the applicant raised two further points in support of his application:

(a)     he complained that in para 20 of our Reasons for Judgment, we had failed to take into account the passage at page 132E of a case we had referred to (Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126); and

(b)     he complained that in para 29 of the same Reasons for Judgment, we erred in saying “[t]here [was] no hint in the interview of the applicant asking for time with his lawyer….”. He asked to have the video-recorded interview played before us to show the part when they had asked for time.

11.Section 32(2) of Cap 484 provides:

“Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done.”

12.After careful perusal and consideration, we are satisfied that nothing put forward by the applicant, both written and oral, can be interpreted as pointing to any point of law of great and general importance being involved in our decision.

13.We explained to the applicant the limits of the grounds upon which a certificate may be granted and that should he feel that he has suffered a substantial and grave injustice, it was open to him to apply for leave under that ground directly to the Court of Final Appeal.  This is not an encouragement for him to do so; merely an explanation of the process.

14.For these reasons, we dismissed the applicant’s application.

Mr David Joseph Chan, ADPP of the Department of Justice, for the respondent

Applicant appeared in person