HKSAR v. ZABED ALI

CACC 401/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 401 OF 2000

(ON APPEAL FROM HCCC 41 OF 2000)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1 On 6 November 2002 this Court, differently constituted as to one of its members, handed down a judgment by which a majority of the Court dismissed this applicant's appeal against the conviction for the crime of murder. The issue upon which there was disagreement was that of the admissibility of a conversation which the applicant allegedly had with a witness, in which the applicant was said to have articulated a desire or intent to kill somebody. This is an application for a certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 that a point of law of great and general public importance is involved in the decision.

2 The question which we are asked to certify is as follows:

"To what extent can evidence which is probative only of a general, or even a specific, propensity to commit the crime charge be admitted, when there is no other evidence to link this evidence to the actual crime of which the Defendant stands accused?"

3 The Notice of Motion in this case is dated 25 November 2002. That means that the application for a certificate is out of time (see Practice Direction 4.3(2)). We have been provided with an explanation for the delay, and our decision to refuse a certificate does not turn upon the delay.

4 We do not think it appropriate to issue the certificate on the basis of the question posed. That is because the issue of law thus posed is well settled; and there appears to be no difference, certainly as between at least two members of the Court who delivered judgments (Yeung JA and Stock JA), as to the principles. The difference between them was as to the application of the principles to this case. The true complaint in this case, as Mr McGowan today effectively accepts, is that the Court has not correctly applied well-established principles. That being the complaint, the appropriate recourse is an application under the second limb of section 32(2) of the Hong Kong Court of Final Appeal Ordinance, that is, the substantial and grave injustice limb; a limb under which it is not open to this Court to act.

5 Accordingly, the application for a certificate is refused.