Chan Tung Cheung v Hksar

Cited as:[1998] 1 HKLRD 36
Court:Court of Final Appeal (Hong Kong)
Judgement Number:FAMC7/1997
Judgment Date:18 Dec 1997
FAMC000007/1997 CHAN TUNG CHEUNG v. HKSAR

FAMC No. 7 of 1997

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 7 OF 1997 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC 198 OF 1995)

_______________________

Between:
CHAN TUNG CHEUNG Applicant
AND
HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent

________________________

Appeal Committee: Chief Justice Li, Mr Justice Litton PJ and Mr Justice Power NPJ

Date of Hearing: 1 December 1997

Date of Determination: 18 December 1997

_________________________

D E T E R M I N A T I O N

_________________________

Mr Justice Litton PJ:

1. This is the determination of the Appeal Committee upon an application for leave brought under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.

2. The application for leave is made on the ground that substantial and grave injustice has been done.

3. The following matters are relied upon:

(1) The Court of Appeal wrongly rejected an application to adduce as fresh evidence before that Court a letter written by a witness Chan Shek-kwong ("Chan"), to the effect that he, Chan, had in fact given false testimony at the applicant's trial, in order to save himself. The letter was written to an inmate at the Lai Chi Kok Reception Centre. Chan was an accomplice and had testified under an immunity from the government.

(2) The trial judge misdirected the jury regarding evidence capable of amounting to corroboration of Chan's testimony: an error which the Court of Appeal failed to correct.

(3) Failure by the judge to direct the jury that out-of-court lies told by the applicant were not probative of guilt. The lies were in an affirmation made by the applicant in support of his application for bail pending trial: An error which the Court of Appeal failed to correct.

Fresh evidence in the Court of Appeal

4. Section 83V(1) and (2) of the Criminal Procedure Ordinance provides:

83V. Evidence

(1) For the purposes of this Part, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice -

(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case;

(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court of Appeal whether or not he was called in those proceedings; and

(c) subject to subsection (3), receive the evidence, if tendered, of any witness.

(2) Without prejudice to subsection (1), where evidence is tendered to the Court of Appeal, thereunder the Court of Appeal shall, unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its powers of receiving it if -

(a) it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the...

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