HKSAR v. Wong Kam Keung

HCMA 71/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 71 OF 2014

(ON APPEAL FROM ESCC NO. 292 OF 2013)

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RULING

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1.This is an application for a certificate to apply to the Court of Final Appeal on the grounds that a point of law of great and general importance is involved in the decision pursuant to section 32 of the Court of Final Appeal Ordinance, Cap 484 namely:

“Does the test for the admissibility of evidence in the cross‑examination of a witness relating to a prior occasion where the witness had given evidence and been disbelieved require a specific conclusion by the tribunal before whom that witness gave evidence a prior occasion that the witness had lied, or is a conclusion that the witness had been disbelieved sufficient assuming that such a conclusion is relevant to the issues of credibility of that witness in the present case.”

2.This application arises from the dismissal of the applicant’s appeal which was heard by Deputy High Court Judge McMahon on the 10^th of June 2014 with the oral judgment delivered on the 18^th of June 2014.  The applicant was appealing against his conviction by a magistrate on 31^st of December 2013 of acting as a member of a Triad Society, contrary to section 20(2) of the Societies Ordinance, Cap 151.  He was sentenced to 12 months’ imprisonment.

3.Whilst this Court is more concerned with the merits of the application, I am firmly of the view that there has been a failure by the applicant to comply with Practice Direction 2.2 which deals with criminal appeals to the Court of Final Appeal.  Paragraph 3 of that Direction requires that applications for a certificate to the Court of Appeal or Court of First Instance that the decision involves a point of law of great and general importance should he made immediately after the judgment is given from which the appeal is to be brought. The judgment was given in on the 18^th of June 2014 and the application was not filed until the 21^st of July which is well over a month later.  I do not accept that the judgment is only given when the written version is supplied as Mr Bruce contends.  There is therefore a clear failure to comply with the Practice Direction.  Having said that I turn to the merits of the application itself.

4.This whole matter centres around the decision of the Court of Final Appeal in HKSAR v Wong Sau Ming (2003) 6 HKCFAR.  As I understand it, that decision establishes the right to cross-examine a witness who has given evidence in a different case when an acquittal has resulted and the court so acquitting expresses a finding that that witness had lied or that that court or had disbelieved the witness which amounts to the same thing.

5.Li CJ at paragraph 30:

“… Unless in acquitting, the court had found that the witness had lied (or which amounts to the same thing, the court had disbelieved the witness), the acquittal could not properly be regarded as relevant to the veracity of the witness in the instant case. It would not have a sufficiently material impact on the court’s assessment of his veracity.”

6.In this applicant’s case the material prosecution witness was an undercover police officer whose evidence had not been accepted or relied upon in a prior case before the District Court which resulted in an acquittal and in a subsequent case before the Magistrates’ Court which likewise resulted in an acquittal.

7.In respect of this case Mr Bruce on behalf of the applicant sought to have new evidence by way of cross-examination of the officer adduced before Deputy High Court Judge McMahon.  This was refused.  His Lordship concluded as shown in his judgment dated 18^th June 2014 which dismissed the appeal by the applicant that in each case the Judge’s and the Magistrate’s findings fell far short of an assertion that the undercover officer lied.

8.The thrust of Mr Bruce’s submission is that whilst the case of Wong Sau Ming is restricted to cases where the witness lied or was disbelieved it does not and did not intend to close the category.  To this end Mr Bruce quoted Li CJ in paragraph 46 of that judgment:

“… In this appeal it is unnecessary to deal with other situation. But it should be observed that lying is only one type of discreditable conduct. And there are tribunals which may make findings of lying and other discreditable conduct. Although it is unnecessary to come to any view, it may be that the approach laid down could apply with such modification as may be appropriate … to finding, by a court of other types of discreditable conduct of the witness in question, provided that the nature of the discreditable conduct is such that the test of relevance is satisfied. An example would be a finding by a court that a police officer had misconducted himself by fabricating a confession …”

9.It is therefore clear beyond a shadow of a doubt that whilst the case deals with findings of lying or what amounts to lying the court was not slamming the door on other conduct capable of reflecting upon the honesty and integrity of the witness.  The whole tenor of Wong Sau Ming is aimed at the probity of a witness not competence, carelessness or other forms of discreditable conduct which strike at the quality of the evidence having no relevance to the witness’ honesty.  To that extent the question posed is, in my opinion already answered and needs no further clarification, rendering the exercise academic.

10.Therefore, I refuse the grant of a certificate to appeal to the Court of Final Appeal, finding there is no point of law of great and general importance, to be decided in this case.

Mr Andrew Bruce SC leading Ms Cindy Lee, instructed by K L Leung & Co, for the appellant

Ms Vinci Lam SADPP, of the Department of Justice, for the respondent