HKSAR v. ANSIR MAHMOOD

CACC 370/2017

[2019] HKCA 982

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 370 OF 2017

(ON APPEAL FROM HCCC NO 165 OF 2016)

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.  The applicant seeks certification of a point of law of great and general importance arising out of the decision of this Court on 12 April 2019. The point of law is articulated as follows:

“Where the trial judge decides not to exercise his residual discretion to exclude certain evidence (“admissibility decision”), does trial counsel’s subsequent formal admission of facts related to that evidence limit the scope of appellate review of the original admissibility decision?”

2.  Although the Court indicated by letter to the parties on 14 May 2019 that after the expiry of 28 days “unless otherwise directed by the court of its own motion or upon application made by the parties for an oral hearing, the Notice of Motion shall be determined on paper without an oral hearing”, neither party subsequently made a request for an oral hearing.  Accordingly, we have decided this matter on the papers.

3.  The point of law proposed is predicated upon the assumption that this Court erroneously felt itself bound by the decision of trial counsel to admit certain evidence at trial by way of admitted fact under section 65C of the Criminal Procedure Ordinance, Cap 221, following an unsuccessful application to exclude the same before the trial judge.  With respect, that assumption is incorrect and the ensuing argument misconceived.

4.  No party can agree to admit the inadmissible in a criminal trial. Authority is hardly needed for such a basic proposition.  In the present case, defence counsel, who was a highly experienced criminal advocate, decided to admit certain evidence by way of admitted fact before the jury, having first failed to persuade the judge to exclude it.  Since counsel on appeal took issue with his predecessor’s decision to formally admit the evidence (but without alleging that his decision was flagrantly incompetent), arguing that such evidence was inadmissible, this Court made the obvious point, at paragraph 28 of its judgment, that:

“We do not, with respect, see how we can be expected to get around [trial counsel’s] admissions, unless it can be said that the defence could never have admitted them, since they were irrelevant, or hearsay, or more prejudicial than probative, or otherwise legally inadmissible”. (emphasis supplied)

5.  As the italicized part of the above passage forecast, the Court then went on to examine, between paragraphs 30 and 37 of its judgment, whether or not the evidence was admissible; and concluded that the evidence was indeed both relevant and admissible and, further, that it could not be said to be more prejudicial than probative.

6.  With respect, the question of law is based on a false assumption and a misunderstanding of the Court’s decision.  As such, the point simply does not arise from the Court’s judgment.

7.  The application for a Certificate is refused.