HKSAR v. OKAFOR PETER ERIC NWABUNWANNE

CACC 437/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 437 OF 2010

(ON APPEAL FROM HCCC NO. 74 OF 2010)

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BETWEEN

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J U D G M E N T

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Hon Stock VP (giving the judgment of the court):

1.  On 27 January 2012, this Court handed down reasons for judgment in respect of the applicant’s application for leave to appeal against a conviction for trafficking in a dangerous drug. We had granted leave to appeal but dismissed the appeal.

2.  The focus of the appeal was upon the adequacy of the judge’s ruling as to the admissibility of evidence relating to what the applicant had told the police when he was in hospital on 19 January 2007.  As Macrae J said in his judgment at paragraph 50, the real issue as presented to us in this regard at trial was whether a woman police constable had accurately and faithfully recorded what the applicant had said to her at the material time.  As to whether the judge should have given reasons, or full reasons, for his ruling, it was, we concluded, entirely clear what those reasons were and in the circumstances of the case there was no need for him to say more.

3.  The Court did, however, address what it described as an issue of general importance raised in the appeal, namely, whether, when a tribunal decided to admit into evidence a statement against interest in the face of a challenge as to its voluntariness or to refuse an invitation to exercise its discretion to exclude evidence, was a tribunal obliged in every such instance to give reasons for its decision; if not, were there nonetheless circumstances in which reasons had to be given: and whether a failure to give reasons ever amounted to an error of law such as to render the conviction, if one followed, susceptible to reversal on appeal.

4.  The essence of our answer was that the reason for a decision in the context postulated by the questions should be clear either from the circumstances as revealed by the record - which included the evidence, the nature of the challenge, and exchanges in the course of the proceedings - failing which, reasons should be provided.

5.  By Notice of Motion dated 27 June 2012, the applicant seeks a certificate, pursuant to section 32 of the Court of Final Appeal Ordinance Cap 484 that a point of law of great and general importance is involved in the appeal, and the questions proposed are these:

“ (1) whether a trial judge in a High Court jury trial has the obligation to provide reasons for a ruling consequent upon a voir dire?

 (2) if the answer to (1) is yes, what is the standard of adequacy in the reasons for such rulings?”

6.  As for the first question posed, we find some difficulty in knowing what answer from the Court of Final Appeal is expected or hoped for, save for the answer provided by this Court.  We might add that, given that the issue in his case as it was presented to us on appeal was whether what was noted was accurately noted or not, and that on his own case he was anxious to unburden himself to the police, it is difficult to know how that Court’s answer to the questions posed could assist this applicant.  We have to say that the grounds keep shifting since it is said before us this morning by Mrs Panesar that there was an inducement to the applicant by the police to say at least in part what he said.  But, as Mrs Panesar concedes, that was not part of the grounds of appeal advanced by counsel on his behalf before this court so this can hardly be said to be an issue involved in the decision. 

7.  As for the second question posed, it is again difficult to appreciate what answer is expected other than that the reasoning must be such as to make clear in the context of the issue in the case, why a material decision has been reached. 

8.  We fail, in short, to see the point in granting a certificate and the application is, accordingly, refused.

9.  We wish to refer for future reference and also for the purpose of this application to the applicant’s representations in his own hand to this court as to why the matter should go before the Court of Final Appeal.  There has been a persistent reference by him to documents which he says he was not allowed to produce or was not able to produce at trial.  The applicant has known since 9 May 2011 when perfected grounds of appeal were drafted on his behalf by leading counsel that there was going to be no argument raised about documents.  That fact that must have been reinforced to him, since he reads English, when he received the Outline of Submissions on his behalf dated 28 October 2011, again drafted by leading counsel;  for, again, there was no mention there of any complaint relating to missing or absent documents. 

10.  On the hearing of the appeal, at the end of the first day of that hearing on 17 November 2011, this Court specifically asked leading counsel acting for the applicant whether he intended to advance other grounds, such as those referred to in a letter from the applicant to the court.  Leading counsel said that he would consider the matter over-night and, in the event, on the resumption of the appeal the next day, no further grounds were argued on his behalf. 

11.  It must, therefore, have been obvious to the applicant from an early stage that matters which apparently concerned him in relation to documents were not going to be argued at the appeal.  His legal aid certificate was discharged in October 2011 but reinstated shortly thereafter and by a letter dated 11 October 2011 there was indication that a fresh legal aid certificate had been issued which would enable leading counsel to visit the applicant to further explain the position to him presumably in relation to the documents, and the Court was shortly thereafter advised that leading counsel and solicitors would continue to represent the appellant at the appeal.  It is clear therefore that the applicant has at all times, and from an early stage, been kept informed and advised as to what the issues were to be advanced at his appeal.  At no stage has any ground of appeal or argument been presented by those representing him in relation to matters addressed by him in a recent affirmation of 24 September 2012 intended for our consideration on this application. 

12.  He should by now appreciate as well that it is not appropriate for this Court whilst he is represented to receive grounds of appeal directly from him.  We wish specifically to record for future reference that we have raised the question of his complaint in relation to documents with Mrs Panesar today and she has notified us that she has considered the point, advised the applicant in their regard and does not consider that the complaint which he makes in relation to documents raises any point of law for which a certificate is required.  Accordingly, for this reason as well, the application for a certificate is denied.