HKSAR v. Hung Wai Yip

CACC 51/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 51 OF 2011

(ON APPEAL FROM HCCC NO. 20 OF 2010)

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BETWEEN

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D E C I S I O N

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Hon Lunn VP (giving the Decision of the Court) :

1.By a judgment handed down on 3 October 2013 we refused the applicant’s application that we treat as a nullity his Notice of Abandonment dated 7 July 2011 of his application for leave to appeal against conviction in respect of Count 2 and dismissed his application for leave to appeal against his conviction in respect of Count 3. We handed down our Reasons for Judgment on 8 November 2013.

2.By a Notice of Motion, filed with the Court on 20 October 2014, the applicant invites the Court to certify that a question of law of great and general importance was involved in our Judgment and Reasons for Judgment.  The question is stated to be :

“ Should an out of court statement which exculpates Co-Defendant A made by a former Co-Defendant B who has previously pleaded guilty, absconded, or for any other reason is not in charge of the jury or other tribunal in fact, be admissible at the trial of A without calling B.”

3.With the agreement of the parties we have dealt with the matter on the papers.

4.Although the application is made very substantially out of time[1] the applicant has made no attempt whatsoever to explain, justify or excuse the delay in making the application.  In the intervening period of 12 months since the Judgment and 11 months since the handing down of the Reasons for Judgment one member of the Court, Stock VP, has retired.

5.In those circumstances for that reason alone we refuse to certify the question.  In any event, we are satisfied that there is no merit whatsoever in the question posed.  What the law should be is not a matter for this Court.  Rather, it is a matter for others.  We are satisfied that the law is unambiguous and no question of great and general importance arises.  Accordingly, the application is refused.

Mr William Tam, DDPP and Mr Ivan Cheung, PP of the Department of Justice, for the Respondent

Mr James McGowan, instructed by Tang, Wong & Cheung, for the Applicant

[1] Paragraph 3 of Practice Direction 2.2 ‘Criminal Appeals to the Court of Final Appeal’, provides that an application for a certificate to this Court “should be made immediately after the judgment was given from which the appeal is to be brought”.

Paragraph 4 of Practice Direction 4.3 ‘Criminal Appeals in the Court of Appeal Handing Down Judgments’, provides that where a judgment is handed down rather than delivered an application for a certificate to this Court “should be made within 7 days of the handing down of the judgment from which the appeal is to be brought”.