HKSAR v. LEE WAN FUNG

CACC 339/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 339 OF 2004

(ON APPEAL FROM DCCC 315 OF 2004)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.  The ground of appeal which, at the invitation of this Court, has been lodged out of time is that Judge Yuen permitted the interviews of four co-defendants (D1, D2, D3 and D5) to be used, at least in part, for the purpose of determining the guilt of the applicant (D4).  Although no such ground was advanced on behalf of D1, D2, D3 or D5, this court, in its judgment given on 17 February 2005 (also CACC 339/2004), held that their appeals must be allowed on a similar basis and a re-trial of each of them was ordered on a fresh charge sheet.  In the course of the judgment, we said:

“For the record, it is plain to us that the judge made the same error in her approach to D4’s case as the others.  She said, firstly, that his account was ‘beyond one’s reasonable comprehension’.  In coming to this conclusion, the judge noted that D4 told the police for the first time in his third statement, which was some twenty-two hours after his arrest, that they had gone to Dangan Island and that it was D3 who had told him the name of the island.  The judge added, secondly,

‘One cannot avoid mentioning the observation that (D3) never said he knew the place they visited in gathering the pine trees.’

We can add, therefore, that counsel for the respondent has kindly indicated that she will assume responsibility for ensuring that D4 (Lee Wan-fung) is notified of the outcome of this matter, inviting him, should he wish to do so, to enter a late application for leave to appeal.”

2.  We shall, therefore, grant leave out of time.  Treating the hearing as the appeal, we allow D4’s appeal and quash his conviction and sentence.  In addition, we order that D4 should be re-tried on a fresh charge sheet.  We should add that it would be desirable for him to be tried with his co-defendants.  No doubt an application will be made to the trial judge for the consolidation of the two cases as we understand that the trial of D1, D2, D3 and D5 has already been set down for 25 July 2005.  In the meantime, pending his re-trial, D4 will remain in custody.