HKSAR v. CHAN HOI TAT

CACC 447/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 447 OF 2010

(ON APPEAL FROM DCCC 488 OF 2010)

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BETWEEN

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REASONS FOR DECISION

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Hon Barnes J (giving the judgment of the Court) :

The application

1.  The applicant was found guilty after trial of the following offences :

(1)  one count of aiding and abetting, counselling and procuring the making of child pornography, contrary to section 89 of the Criminal Procedure Ordinance, Cap 221 and section 3(1) of the Prevention of Child Pornography Ordinance, Cap 579;

(2)  two counts of criminal intimidation, contrary to sections 24(a)(ii) and 27 of the Crimes Ordinance, Cap 200; and

(3)  two counts of indecent assault on another person, contrary to section 122(1) of the Crimes Ordinance, Cap 200.

2.  The applicant’s application for leave to appeal against conviction was dismissed on 27 September 2011, with reasons handed down on 18 October 2011.

3.  By a Notice of Motion dated 25 October 2011, the applicant applies under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 for a certificate to certify that points of law of great and general importance were involved.

The stated points of law

4.  The stated points of law are as follows :

“In circumstances where a Court has granted Leave for Alibi evidence to be called notwithstanding non-compliance with Section 65D of the Criminal Procedure Ordinance (or S75A of the District Court Ordinance):-

The extent to which, if any, the lateness of the Alibi Notice is a matter for the jury or a Judge sitting alone?

Should a Defendant be nevertheless required, as a matter of law, to provide an explanation for ‘late notification’ notwithstanding the burden of disproving an alibi is on the Prosecution.

Further if ‘late notification’ is said to be the basis of rejecting such an alibi either expressly or implicitly, then to what extent should the Prosecution and/or Judge enquire as to the reasons for such lateness before the former can invite, or the latter direct, a jury to reject it, or, if sitting alone, disregard it.

Can a Judge or Prosecution as a matter of law make adverse comments to the jury on the lateness of the alibi not withstanding that it has been admitted into evidence?”

The applicant’s submission

5.  The crux of the submission of Mr McGowan, counsel for the applicant, was that since there was no opposition to the lateness of the application and neither the court nor the prosecutor had sought any explanation for the “lateness”, was it correct for the trial judge (as the fact finder) to reject such alibi evidence.  Mr McGowan submitted that if the applicant/defendant was required to “volunteer” an explanation for the “lateness”, such requirement, as a matter of law, would offend the principles enunciated in Browne v Dunn[1].

6.  Mr McGowan submitted that these matters raise questions of law of general application and significant importance which should be considered and resolved by the Court of Final Appeal.

The respondent’s response

7.  Miss Agnes Chan, Assistant Director of Public Prosecutions, submitted that no points of law arose out of the four points stated by the applicant.  She submitted that it was a fact that the application to adduce alibi evidence was late.  No improper or adverse comments were made by the trial judge towards the applicant.  She further submitted that this court accepted the trial judge was well aware of the burden of disproving an alibi is on the prosecution, the trial judge was entitled to reject the evidence of the alibi witness.

Discussion

8.  As stated in para 33 of our judgment “[i]f DW[1]’s evidence was true or could have been true, such alibi evidence would have thrown doubt on the evidence of Miss X in relation to the indecent assault at the Emerald House.”  The trial judge had to evaluate the credibility and reliability of this alibi witness.  Whilst we do not have the statements of Miss X to the police in relation to this case, the fact is that out of the five charges, the 5^th charge was the only one in which a date (5 August 2005) was mentioned.  The alibi witness gave evidence of an event (a hospital visit) which occurred on 5 August 2005.

9.  It was a fact that Miss X had already concluded her evidence-in-chief and was in the course of being cross-examined when an application was made to the trial judge to admit the alibi evidence.  No explanation was given for the lateness.  While the burden of disproving alibi evidence lies on the prosecution, the trial judge is entitled to consider the unexplained lateness of the alibi evidence in the circumstances of the present case when evaluating the evidence of the alibi witness — particularly when the alibi witness was relating to an incident which occurred five years ago.  The trial judge did not reject the alibi evidence purely on the lateness of the alibi evidence.  He made no adverse comment on the lateness, he merely took that fact into account in his consideration.

Conclusion

10.  We are of the view that the points of law are not engaged in the present case.  Further, since the matter is fact specific, we do not regard that they satisfy the great and general importance requirement.  Accordingly the application is refused.