Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

A v Secretary For Justice And Another

Judgment Cited authorities 5 Cited in 1 Precedent Map Related
Vincent
Judgment Date11 March 2020
Neutral Citation[2020] HKCFI 427
Judgement NumberHCAL176/2018
Citation[2020] 2 HKLRD 86
Year2020
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL176/2018 A v. SECRETARY FOR JUSTICE AND ANOTHER

HCAL 176/2018

[2020] HKCFI 427

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 176 OF 2018

________________________

BETWEEN
A Applicant

and
SECRETARY FOR JUSTICE 1st Respondent
SOLICITOR GENERAL 2nd Respondent
DEPUTY SOLICITOR GENERAL 3rd Respondent
(POLICY AFFAIRS)

________________________

Before: Hon Chow J in Court
Date of Hearing: 5 December 2019
Date of Judgment: 11 March 2020

____________________

J U D G M E N T

____________________

INTRODUCTION

1. This is an application for judicial review of the refusal of the Department of Justice (on behalf of the Government) to grant compensation to the Applicant under (i) Article 11(5) of the Hong Kong Bill of Rights (“HKBOR”), and (ii) the Government’s administrative ex gratia scheme (“the Ex Gratia Scheme”) for a wrongful conviction resulting allegedly from serious default by the police or other public authority.

THE APPLICANT’S CONVICTION

2. On 21 October 2013, the Applicant was convicted of the offence of conspiracy to commit robbery after a jury trial in the Court of First Instance (HCCC 468/2012). He was sentenced to 8.5 years of imprisonment by the trial judge.

3. The prosecution evidence and the Applicant’s defence were summarized in the judgment of the Court of Appeal in CACC 400/2013 (“the CA Judgment”), reported as [2016] 5 HKLRD 406, which I shall gratefully adopt for the present purpose:

“1) Prosecution evidence

[5] The charge alleged that the applicant conspired with [X] to commit the offence of robbery between 1 March 2011 and 14 July 2011.

[6] The prosecution relied on 4 prosecution witnesses, who were robbed by a male respectively on 16 May, 13 June, 13 July and 14 July 2011 inside a lift of a building while on their way back to the office after withdrawing money from the bank.

[7] PW1 and PW2 said that they were robbed of $20,000 on 16 May 2011 and 13 June 2011 respectively. PW3 said that she was robbed of $2,000 on 13 July 2011. PW5 said that she was robbed on 14 July 2011, but the robber was unable to rob her of any money.

[8] In the present case, the prosecution also relied on PW4, that is, the [X] as alleged in the charge, to give evidence against the applicant.

[9] [X] was previously arrested by the police on 11 August 2011 and pleaded guilty to 3 counts of robbery in the High Court in June 2012, that is, the offences in relation to the robbing of PW1, PW2 and PW3. The prosecution agreed that the charge against [X] in respect of the robbery which took place on 14 July 2011 be dismissed.

[10] On 2 August 2012 [X] indicated to the police that he was willing to be a witness for the prosecution to testify against the applicant for conspiring with him to commit the 4 robberies. As [X] agreed to give evidence in the present case, the Secretary for Justice granted him immunity from prosecution as regards the robbery that took place on 14 July 2011.

[11] In the present case, [X] testified that he had plotted with the applicant to rob bank customers who withdrew money from the bank. Their arrangement was to have the applicant entered the bank first, and he would call [X] after he spotted a suitable money withdrawer. [X] would then follow these persons to their office, and rob them with a knife inside a lift. [X] admitted that, on 16 May 2011, he and the applicant had split the $20,000 obtained from the robbery he committed. He also stated that he and the applicant had split the money obtained from the robbery on 13 June 2011. [X] stated that no money could be obtained from the robberies on 13 and 14 July 2011. He stated that the four robberies were proposed by the applicant. [X] said that he had two previous robbery convictions. He knew how to commit a robbery and did not require the applicant to teach him what to do.

[12] PW7 was a police officer. He admitted that the applicant was his informer. Between July and August 2011, the applicant had provided information concerning some robberies involving [X], but the applicant did not specify the cases to which the information related. After PW7 received the information, he reported the same to his superior officer. PW7 denied that the applicant had tipped him off before each of the four aforesaid cases took place. He also denied that the applicant had contacted him during the course of these four cases.

2) The applicant’s defence

[13] On 24 August 2011 the applicant was arrested in connection with the offences of robbery, and the police allowed him bail on his own recognizance of $500. This went on until 15 March 2012 when the applicant was discharged unconditionally, and not subjected to any bail conditions.

[14] On 17 October 2012 the police re-arrested the applicant.

[15] The applicant gave evidence in his defence. The applicant stated that [X] had invited him to commit robbery together, but he refused. The applicant knew a person named ‘Ah Fai’, who told him that [X] would commit robbery. The applicant said that he and ‘Ah Fai’ entered into agreement to inform the police of [X]’s actions in return for remuneration. The applicant said that he had contacted PW7 prior to and during the course of these 4 robberies and provided him with information on [X]’s actions. PW7 instructed the applicant to look further into the matter, and to find out who [X]’s partner in crime was. The applicant said that, in those 4 incidents, he did show up in the banks concerned, but he was there merely to look further into the matter and to comply with PW7’s instructions, in order to find out who [X]’s partner was. He had absolutely no intention to commit any offence, nor was he there to look for targets to rob.”

THE APPLICANT’S SUCCESSFUL APPEAL

4. On 28 November 2013, X sought leave to appeal against his sentence of 6 years’ imprisonment out of time. His grounds were that, after he had been sentenced, he provided to the police particulars of his accomplice, namely, the Applicant, in three robberies in which he was involved, and that enabled the police to successfully arrest the Applicant. He also acted as a prosecution witness to testify against the Applicant, and that resulted in the successful prosecution of the Applicant. The Court of Appeal allowed X’s appeal and reduced his original sentence of 6 years’ imprisonment to one of 5 years.

5. The Applicant also appealed against his conviction, contending that the prosecution had failed to disclose to him relevant materials (“the Telephone Records”) which cast serious doubts on the credibility X, being the main prosecution witness in his criminal trial, and the non-disclosure constituted a material irregularity in the trial. The relevance of the Telephone Records, as well as the circumstances in which the non-disclosure came about, were described in §§18-21 of the CA Judgment, as follows:

“[18] … The applicant’s lawyers successfully obtained from the Department of Justice [X]’s telephone communication records covering the material times of the offences. However, the prosecution did not disclose these records to the applicant or his legal representative prior to the trial in the present case.

[19] [X]’s evidence was that, having found a robbery target in the bank, the applicant would call [X] to inform him of the target person’s features, and let [X] carry out the robbery. However, by referring to [X]’s telephone communication records obtained from the police, it can be seen that in the three robberies that took place on 13 June, 13 July and 14 July 2011, contrary to what [X] had claimed, the applicant actually did not have any telephone contact with [X] during the time he remained in the bank or even before the robbery took place.

[20] Mr Eric Cheung, solicitor representing the applicant, submitted that [X] clearly had the motive to frame the applicant. [X] once said in his evidence that it was his own speculation that the applicant provided information to the police to accuse him of committing the relevant robberies. Many of the key issues referred to in [X]’s oral testimony in court were self-contradictory, and there were repeated substantial inconsistencies between them and those in the version he stated to the police before the trial. When [X] was cross-examined on the inconsistencies between his evidence and his previous statements, he frequently exhibited an utterly unreasonable attitude, failed to provide logical explanations, and repeatedly admitted [to] lying to the police earlier. The relevant phone records were obviously in direct contradiction to what [X] said in his evidence, showing that he made up the facts to frame the applicant. The prosecution did have the duty to provide the relevant material to the defence. However, the prosecution did not do so, and up to the current moment, they had not explained why they did not do so.

[21] Ms Anna Lai, counsel for the respondent, explained to us about the handling of the telephone communication material in the present case. The police had requested for and obtained from the telecommunications company the telephone records of [X] and the applicant from June to July 2011 (the telecommunications company no longer retained the communication records for the month of May). These records were saved in the office computer of an inspector formerly in charge of the case. The police had sought legal advice from the Department of Justice in October 2011. Both the documentary file and the accompanying comprehensive report submitted did not mention the investigation on the mobile phones of [X] and the applicant, nor the call records obtained. In August 2012, when another inspector formerly in charge of the case sought legal advice from the...

To continue reading

Request your trial
1 cases
  • Li Chiu Wah Joseph v Hong Kong Society Of Notaries
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 30 July 2020
    ...amendments added to the Form 86. [81] HCAL 51/1999 (dated 28.10.1999) at • 9. [82] HCAL 1890/2018 [2020] HKCFI 548, at • • 72-73. [83] [2020] 2 HKLRD 86, at • 51. [84] [2002] 2 AC 357 [85] The provision says, “In the case of any inconsistency between the provisions of this Ordinance and the......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT