TANG YUK FAI v. HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMC No. 51 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 51 OF 2010 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 406 OF 2007)

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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.  This applicant was convicted in the High Court of conspiracy to murder. His conviction was affirmed by the Court of Appeal. He now applies out of time for leave to appeal to the Court of Final Appeal against that conviction.

2.  If there be merit in the application, it should not in the circumstances be shut out for lateness.  So is the application meritorious?  It is brought under the “substantial and grave injustice” limb of s.32(2) of the Court’s statute.  Two complaints of substantial and grave injustice are made.  The first is set out thus in the written application :

“(a)(i) The Learned Recorder having directed the jury that before they could accept the evidence of the sole witness against the Applicant (called therein PW3), they should look for corroboration of the fact that PW3 was telling the truth. He did not direct the jury that the corroboration should have been matters which concerned the evidence against the Applicant.

(ii) The Court of Appeal (para.33 of the Judgment) found that since s.60 of the Criminal Procedure Ordinance (Cap.221) no longer requires a direction to be given to the jury in relation to corroboration of an accomplice’s evidence, that the Learned Recorder went further than he needed to do.

(iii) The Court of Appeal erred in this regard. Where a judge in his discretion advises a jury to look for corroboration, that corroboration should be independent testimony which affects the accused by connecting or tending to connect him with the alleged offence. See R v. Baskerville [1916] 2 KB 685, HKSAR v. Kwok Wai-chau [1998] 2 HKLRD 272 and HKSAR v. Chan Kit Yan & Others [2009] 6 HKC 396.”

3.  Turning to the second complaint of substantial and grave injustice, it is expressed thus in the written application :

“The evidence of PW3, which was the only evidence against the Applicant was so flawed that the Court of Appeal should have found that there was a lurking doubt as to the safety of the conviction.”

4.  For reasons which will become apparent in a moment, it is appropriate to deal with the second complaint before dealing with first one.  The second complaint involves inviting the Court of Final Appeal to consider – just as the Court of Appeal considers – whether a conviction is unsafe or unsatisfactory. And that is precisely what the Court of Final Appeal said in So Yiu Fung v. HKSAR (1999) 2 HKCFAR 539 it will not do.  When this difficulty with the second complaint was raised with counsel for the applicant, he said that it ought to be treated as subsumed in the first complaint.

5.  So we turn now to the first complaint.  As set out in the written application, it concerns corroboration.  In fact, the recorder did not speak of corroboration.  What he did was to tell the jury that “it would be wise to look for some supporting material before acting on [the accomplice’s] evidence”.   When this was pointed out to counsel for the applicant, he re-formulated his point under the first complaint at dictation speed.  We wrote it down.  It is as follows :

“In a case where there is an accomplice and there is no other evidence to implicate the accused, it is wrong for a judge to say to a jury that there is evidence which is capable or supporting that witness, ie that indicates that he is telling the truth, when the evidence to which he points deals with matters that are not in issue, that do not impact upon that accomplice’s credibility or are matters on which the jury does not have to make a finding before deciding on credibility.”

The fatal problem with that re-formulation is that it goes, as a matter of substance, to corroboration even though it avoids using the word “corroboration”.

6.  We have considered what the recorder told the jury in regard to supporting material, doing so by taking the summing-up as a whole and in the context of the issues in the case.  Having done so, we do not consider it reasonably arguable that what was said involved any error or omission constituting a departure from accepted norms such as to warrant leave to appeal under the “substantial and grave injustice” limb.

7.  In the result and despite the skill and thoroughness with which this application has been argued on the applicant’s behalf, leave to appeal to the Court of Final Appeal is refused.