HKSAR v. YEUNG KA YEE

CACC 107/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 107 OF 2001

(ON APPEAL FROM HCCC 69 OF 2000)

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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. This is an application which has been brought under the provisions of section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, for a certificate that points of law of great and general importance were involved in the judgment which this Court handed down on 13 December 2002.

2. The first point of law drafted by Mr Haynes, on the Applicant's behalf, originally read:

"Whether any proved breach of section 51 of the Police Force Ordinance (as found by the trial judge and conceded by the prosecution at trial) is "improper conduct" by the police towards the arrested person regardless of ancillary matters such as publicity."

3. Today, however, he has amended that question to read as follows:

"Whether a substantial, logically inexcusable and proved breach of section 51 of the Police Force Ordinance is capable per se (i.e. regardless of police conduct during the intervening period) of amounting to oppression and whether the jury should be so directed (i.e. is the direction at T29E-H a misdirection?)"

For ease of reference, that passage from the transcript, taken from the summing-up, is as follows:

"If you are unsure that any admission was made in circumstances free from impropriety of that nature, then you should give that admission no weight. If, on the other hand, you are sure that any admission was made in circumstances free from impropriety of that nature, then you may act on such admission."

Mr. Haynes did not accept our suggestion that perhaps the more relevant direction was to be found at page 30B-H which reads:

"I direct you to assume that, as a result of the accused being taken to the roof and kept there for a time, that requirement was not complied with. Even so, what matters is why the accused were taken to the roof and what happened there. If the accused were ill-treated as alleged, then subsequent out-of-court statements by them, would be unreliable, whatever "forthwith" means. But if the accused were treated properly, then the out-of-court statements would not be rendered unreliable merely because taking the accused to the roof and keeping them there amounted to non-compliance of the "forthwith" requirement no matter how honestly and sincerely the police behaved."

4. The second point of law reads:

"Whether the current police standard form "Notice to Persons in Custody" adequately discharges the obligations placed upon the police to inform persons in custody of their basic right to effective access to legal advice both before, during and after police interviews."

5. We decline to certify. Leaving aside the lack of clarity which still exists as to the first point raised, we take the view that these points were not central to the determination of the case against the Applicant and that they have, in the present context, the flavour of points of academic interest only. In any event, no point of great and general importance was involved in the judgment of this Court.