LO HO CHUNG v. HKSAR

FAMC No. 28 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 28 OF 2001 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 1039 OF 2000)

_______________

_________________________

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

_________________________

Mr Justice Chan, Acting CJ :

1. The applicant who was a police officer was convicted after trial by a magistrate of one charge of indecent assault. His appeal against conviction was dismissed by a judge of the Court of First Instance. The judge also refused his application to certify a point of law as one of great and general importance for the consideration of the Court of Final Appeal. The applicant now seeks leave to appeal from this Committee on the ground that there has been substantial and grave injustice done to him and applies for extension of time to do so.

2. The sole issue at the trial was identification. The victim identified the applicant at an identification parade which was conducted 5 days after the offence. Although it took her 4 minutes to identify him, she said she was sure that it was the applicant who had indecently assaulted her. One of the disputes related to the way in which the parade was conducted. A voir dire was held to decide the admissibility of the evidence on the identification parade. All the participants in the parade were members of the Police Tactical Unit of which the applicant was also a member. The Chief Inspector who was in charge of the parade had explained to all participants (albeit in a group instead of individually) their rights including that they were free to take part in the parade, and that they had the right to instruct a lawyer to attend. All of them, including the applicant, consented to take part and did not require the attendance of a lawyer. One of the arguments put before the trial magistrate was that the Chief Inspector did not follow police internal procedures requiring him to obtain individual consent from the participants as against consent en masse before holding the parade. The magistrate did not consider that to have affected the rights of the participants and held the evidence admissible. He gave his reasons for doing so in a separate addendum.

3. On appeal, it was argued on behalf of the applicant that there was a breach of the police code on identification parade which was not drawn to the attention of the trial magistrate and that is, that only one suspect should attend any parade at a time; but here, as all participants including the applicant were members of the PTU, this was tantamount to having nine suspects taking part in the same parade. Hence, there was a breach of this code. The judge held that there was a breach, but said that one should not speculate as to what the magistrate might or might not have done if he had been alerted to such breach. The judge concluded that there was no unfairness or injustice to the applicant.

4. The real complaint is that the judge was wrong to hold that there was no unfairness or injustice despite her finding that this was a breach of the code. It is also argued on his behalf that the judge applied a proviso power under s.83 of the Criminal Procedure Ordinance, Cap 221, which she did not possess and this had resulted in a substantial and grave injustice to the applicant. Counsel relies on the decision of the Court of Appeal in Fai Ma Trading Co. Ltd. v L.S. Lai (Industry Officer) [1989] 1 HKLR 582.

5. We take the view that what the judge did was only to apply her power under s.119(1)(d) of the Magistrates Ordinance, Cap 227. The scope of that power was discussed in the Court of Final Appeal case of Ching Kwok Yin v HKSAR (2000) 3 HKCFAR 387, where Sir Alan Huggins NPJ said at p.390G:

"There is in the Magistrates Ordinance no equivalent to s.83 of the Criminal Procedure Ordinance (Cap. 221), which specifies the grounds upon which an appeal to the Court of Appeal may be allowed, and therefore there is no proviso which requires that the appeal shall be dismissed if no miscarriage of justice has actually occurred: the judge may make such order as he thinks just. It follows that he has to decide whether there has been in the Magistrates' Court an error which makes it just that the appeal should be allowed and the conviction set aside."

6. Accordingly, we think it is misconceived to criticise the judge for having allegedly applied the proviso under s.83 of the Criminal Procedure Ordinance. We do not see any reasonably arguable case that a substantial or grave injustice has been created. For these reasons, we dismiss the application for leave to appeal. We need not deal with the application for extension of time.