TSE, NICHOLAS v. HKSAR

FAMC No. 16 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 16 OF 2004 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 39 OF 2003)

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

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Mr Justice Bokhary PJ:

1. The applicant was involved in a traffic accident when the car he was driving went out of control and crashed into the railings by the side of the road. In the aftermath of this accident, he was convicted after trial in the Magistrate's Court on a charge of conspiracy to pervert the course of public justice. This was a conspiracy pursuant to which a Mr Shing Kwok-ting pretended that he had been driving the car at the time of the accident. On appeal to the High Court, the applicant's conviction was affirmed by the appeal judge (Beeson J). The applicant now seeks leave, out of time, to appeal against conviction to the Court of Final Appeal. In the light of the arguments advanced in support of this application, it is necessary to make some reference to the evidence.

2. At the trial, the principal prosecution witness was Mr Shing whom the charge named as one of the applicant's co-conspirators. Mr Shing was employed by an entertainment company. The applicant, who is an entertainer, used this company's services.

3. Mr Shing's evidence was challenged by way of cross-examination conducted on the applicant's behalf. But it was not contradicted by any evidence from the applicant himself since the applicant chose not to give evidence.

4. From Mr Shing's evidence, which the magistrate accepted, the following facts emerged. Immediately after the accident, the applicant telephoned Mr Shing and told him what had happened. Mr Shing told the applicant to leave the scene of the accident. And the applicant did so. Later on Mr Shing made a statement to the police. In this statement Mr Shing told the lie that he had been driving the car at the time of the accident. After making this false statement, Mr Shing went to the applicant's home. There Mr Shing read this false statement to the applicant and told him to drive more carefully in future. The applicant replied: "Police are helpful, I know that, all right". Some days later, Mr Shing showed the applicant a driver identification form which repeated the lie that Mr Shing had been driving the car at the time of the accident. Mr Shing asked the applicant to sign this false form on behalf of the company which was registered as the owner of the car. The applicant did not respond. Whereupon the applicant's personal assistant signed this false form in the applicant's presence. All of these events took place within the charge period.

5. It is contended on the applicant's behalf that it is reasonably arguable that his conviction involves substantial and grave injustice. This argument - as it emerges from a combination of the written application for leave to appeal, the applicant's skeleton arguments and the oral submissions made on his behalf - divided itself into four strands.

6. The first consists of an attack on Mr Shing's credibility. But the only material inroad into Mr Shing's credibility arises in regard to his evidence against the police constable investigating the accident. It does not spill over to this applicant's case in any way that provides a foundation on which a reasonably arguable case of substantial and grave injustice can be erected on his behalf.

7. As for the second strand, it consists of an argument that the magistrate, laying too much emphasis on the fact that the conspiracy was for the applicant's benefit and on the fact that the applicant knew about the conspiracy, never properly evaluated the evidence on the issue of whether the applicant joined the conspiracy. There is no substance in this argument. The magistrate did not confine himself to the factors of benefit and knowledge. He also said that the conspiracy could not have been implemented without the applicant's agreement and preparedness to do and refrain from doing whatever the conspiracy required.

8. Turning to the third strand, it consists of the contention that the magistrate failed properly and fully to evaluate real and substantial deficiencies in the prosecution's evidence, particularly Mr Shing's testimony. The short answer to this is that as far as this applicant is concerned, it is plain beyond reasonable argument to the contrary that there was no departure from accepted norms in the magistrate's evaluation of the evidence or the appeal judge's reasoning in upholding that evaluation.

9. This brings us to the fourth and final strand, which consists of the contention there was insufficient evidence on which it could safely be concluded to the criminal standard that the applicant was a party to the conspiracy. On the evidence adduced, crucially on what happened when Mr Shing went to the applicant's home, it is simply impossible to contend with any force that the evidence was insufficient for this purpose. The magistrate was plainly entitled to conclude, as he did, that the only reasonable inference on the facts which he found was that the applicant was a party to the conspiracy.

10. The upshot is that it is not reasonably arguable that this applicant has suffered substantial and grave injustice. Accordingly this application for leave to appeal to the Court of Final Appeal is dismissed.