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Hksar v Chan Kau Tai

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date12 September 2005
Year2005
Judgement NumberCACC26/2004
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC000026/2004 HKSAR v. CHAN KAU TAI

CACC 26/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 26 OF 2004

(ON APPEAL FROM HCCC NO. 333 OF 2002)

______________

BETWEEN

　 HKSAR Respondent
　 and 　
　 CHAN KAU TAI (陳裘大) Applicant

______________

Before: Hon Tang JA in Chambers (open to public)

Date of Hearing: 31 August 2005

Date of Decision: 31 August 2005

Date of Reasons for Decision: 12 September 2005

________________________________

REASONS FOR DECISION

________________________________

Hon Tang JA (giving the reasons for decision of the Court):

1. This is the applicant’s application for order under section 83V of the Criminal Procedure Ordinance, Cap. 221.

2. It is common ground that there has been non-disclosure of the conviction and the disciplinary record of Chief Investigator Yang.

3. The hearing of the appeal has been adjourned to 6 December 2005 with 7 days reserved when oral evidence from both sides regarding the non-disclosure would be given. For that purpose, the parties have been given leave to file further evidence no later than 60 days prior to the resumed hearing. The prosecution has indicated that they would file four to six further affirmations.

4. Since it is common ground that there was non-disclosure, the further and oral evidence will, I expect, be directed to the reason for the non-disclosure, and perhaps whether the defence had been prejudiced by the non-disclosure.

5. Members of this court at the hearing in January 2005 had expressed the view that the motives for the non-disclosure might have a bearing on the result of the appeal. Whether it would indeed have a bearing remains to be decided, for as Mr Zervos has rightly pointed out those views were expressed in the course of submissions and they were not the final word on the matter.

6. I should also add that there has been no decision yet on whether the non-disclosure was material nor whether the non-disclosure has rendered the convictions unsafe.

7. Be that as it may I must proceed on the basis that the reason for non-disclosure may be relevant to the determination of the appeal.

8. This is the applicant’s application for production. It is a measure of the co-operation between the applicant and the respondent that in the summons dated 30 June 2005, the applicant sought production of 5 items only.

9. The differences between the parties have been narrowed down further, so that I need only adjudicate on 3 of the items.

10. Mr Zervos opposed the application on two grounds:

(1) the application is premature. He submitted that the applicant should want for the further evidence which would be filed no later than 60 days before the hearing of the appeal. Also that:
“In light of the seriousness of the allegations, it is unfair to those being accused of wrongdoing to have to provide information in a piecemeal fashion and without regard to their rights and to fair and proper procedures. It has always been the position of the ICAC to answer these allegations in light of the seriousness.”
para. 7 of his skeleton submission.
(2) that it is a fishing expedition.

11. I do not believe the application is premature. We are only three months away from the hearing. It is true that the parties may file further evidence 60 days before the hearing, but the information sought might be useful to the applicant in the preparation of any evidence which he might file. If so, obviously he would want them now rather than later. As for disclosing evidence piecemeal, it is difficult to see how it might prejudice the prosecution. The court will understand that the prosecution’s full case will not be revealed until all the evidence...

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