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)

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

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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 appeal; and

(b) it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it.

5. The applicant had filed a notice of motion asking the Court of Appeal "to call and/or to issue witness summonses to" eight persons: In other words, an application under s83V(1)(b) to compel those witnesses to attend and be examined before that court. Seven of those witnesses were to prove the authenticity of a letter which was written by the 8th, Chan, the accomplice. The need to call those seven fell away as it was common ground that the letter had been written by Chan. The Court of Appeal was therefore, on the notice of motion before it, left with an application to compel Chan's attendance as a witness. Had the matter proceeded in the usual way it would have been for the applicant to satisfy the Court of Appeal on several matters. Firstly, that the evidence it was being asked to receive would afford a ground for allowing the appeal, then to establish that the evidence was "likely to be credible and would have been admissible in the proceedings from which the appeal lies", and finally that there was "a reasonable explanation for the failure to adduce it" at trial. The application to call Chan was, however, not proceeded with as he had disappeared and was thought to be in the mainland. The application then (without any amendment of the notice of motion) became one which sought to have the letter received as evidence by the Court of Appeal.

6. The "evidence" to be considered was simply a letter which contained an admission by Chan that he had falsely testified against the applicant at the trial: It said nothing more of relevance to the case.

7. The first matter an appellate court must determine in such an application is whether the "evidence" if received would afford any ground for allowing the appeal. If this condition is not satisfied it will not be necessary for the court to consider the other matters. Plainly, in this case, the applicant failed at the first hurdle.

8. The letter makes no mention of the facts of the case but stands simply as a bald...