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Mak Kam Chuen v Hksar

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date13 December 2001
Year2001
Judgement NumberFAMC35/2001
Subject MatterMiscellaneous Proceedings (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FAMC000035/2001 MAK KAM CHUEN v. HKSAR

FAMC000035/2001

FAMC No. 35 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 35 OF 2001 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 411 OF 1997)

_______________

Between
MAK KAM CHUEN Applicant
AND
HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent

_______________

Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 13 December 2001

Date of Determination: 13 December 2001

_________________________

DETERMINATION

_________________________

Mr Justice Chan :

1. On 14 July 1997, the applicant was convicted after trial before a judge and a jury in the Court of First Instance of conspiracy to manufacture dangerous drugs. He was sentenced to 20 years' imprisonment. On 30 April 1999, his appeal against conviction was dismissed. His sentence was later reduced to 14 years on appeal. Two and a half years later, he now seeks leave to appeal against conviction on the ground that he has suffered substantial and grave injustice. He alleges that such injustice has resulted from two matters: (1) the conduct of his senior counsel at the trial, namely, failing to seek separate representation for him when there was a clear conflict of interest between him and one of the co-accused who were represented by the same counsel; and (2) the conduct of another senior counsel acting for him in the appeal before the Court of Appeal, namely, failing to consult him or seek his consent before abandoning the ground of appeal which relied on such conflict of interest at the trial. He also asks for extension of time to make this application.

2. For the purpose of this application, it is not necessary for us to go into any great detail on the facts of this case or what happened at the trial or in the appeal before the Court of Appeal, save and except the following.

3. The trial involved four accused. The 1st accused, the 2nd accused who died during the course of the trial and the applicant who was the 4th accused were represented by the same senior and junior counsel. The prosecution relied mainly on the evidence of two accomplices, PW1 and PW2 who gave evidence under immunity. Both testified against those who were involved in the conspiracy. They included the 1st accused, 2nd accused, 3rd accused and a person who was called Mak Kam Chuen. PW1 who introduced them into the manufacturing process said he knew this person called Mak pretty well. However, he did not identify the applicant as that person. On the other hand, PW2 who did not know this person well was able to identify the applicant as that person in court. Before the cross examination of PW1, senior counsel acting for the 1st accused and the applicant indicated to the trial judge that he was concerned whether there was any conflict of interest between the 1st accused and the applicant and whether he should continue to act for both of them. He said he was in a dilemma because, in the interest of 1st accused, he had to attack PW1's credibility but in the interest of the applicant, he had to maintain PW1's evidence of non-identification of the applicant intact. Having reflected on the matter and having consulted the applicant,...

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