HKSAR v. WONG WAH YEE

CACC 40/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 40 OF 2000

(ON APPEAL FROM HCCC 79 OF 1999)

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J U D G M E N T

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Hon Stock JA:

1. This is an application for a certificate under section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, that certain points of law of great and general importance are involved in a decision of this court which was handed down on 17 November 2000.

2. There are three questions posed, and they are these:

"(1) Whether there is a separate rule in cases involving similar facts, where the issue is one of identity, that evidence of a character sufficiently special reasonably to identify the perpetrator is required;

(2) Whether, in such cases, it is necessary for the jury to be directed that they must first decide whether the conduct on the count to be taken into account as similar fact evidence to prove identity on another count, must be of such a nature as to amount to a criminal conduct of a similar nature as that on the [other] count; and

(3) Whether there must be a special and different direction to the jury when they are instructed to consider similar fact evidence as going to identity, where the "sequential" approach is to be used, as opposed to the "cumulative" approach."

3. There is also an application that this certificate be granted out of time.

4. The applicant was convicted and sentenced in January 2000 in the District Court in relation to two charges of attempted robbery, and one of carrying an imitation firearm with intent to commit an arrestable offence. He was convicted, and his application for leave to appeal against the conviction came before this court on 19 October 2000. Our judgment was handed down on 17 November 2000. This notice of motion is dated 27 February 2001, that is, more than three months from the date of judgment. The practice direction which governs criminal appeals to the Court of Final Appeal stipulates that:

"3. Applications for a certificate to the Court of Appeal or the Court of First Instance that the decision involves a point of law of great and general importance should be made immediately after the judgment is given from which the appeal is to be brought.

4. The applicant should provide the court with a written statement of the point of law involved. Submissions on the application will then be heard and determined.

5. If either party requests for time to prepare the written statement or submissions and obtains an adjournment, an early date will be fixed for the resumed hearing."

5. One sees immediately how these directions have been breached in this case. In HKSAR v. Choi Wing Man [1999] 2 HKC 382, the rationale for this direction is fully explained, as was the attitude of this Court to breaches of the direction. We are told by Mr Harris, who appears upon this application for the applicant, that the delay thus far is due to an application for legal aid in which a decision did not come for some time. We do not consider that this justifies a failure to take at least the initial step. It would have been easy for leading counsel involved to have made the application forthwith, accompanied if absolutely necessary by an application to adjourn the hearing of the application for a certificate pending determination of the legal aid application. For this reason alone, we would refuse the application now before us, but we are prepared nonetheless to say something of the merits.

6. The first and third questions posed as suggested questions for certification misunderstand the issue in this particular case and, more particularly, the essence of the judgment delivered by this court. This court did not decide questions of similar fact evidence as a source of original identification. As ought to be clear from the judgment, identity in the December incident was not in dispute and the established December events and their relevance to the August incident was not, as we say in the judgment, the potential for establishing an original identification in relation to the August incident, but was there as a source of possible support for an identification already made in relation to that August incident. We fail to see either that these points posed truly arise or that there is any possible merit in the attack mounted.

7. The second point, in so far as we understand the way it has been framed, is the point argued before us when this matter came on for hearing upon appeal, namely that it was necessary before evidence of the applicant's December conduct could be utilised in relation to the August event, that it first be proved that his conduct in December amounted to attempted robbery. We explained in our judgment why we did not agree with that as a proposition of law, and it bears repeating: "To suggest in such circumstances that the failure to prove the final constituent of the offence of attempt, if failure there was, must result in the casting aside of all the other evidence of the December incident, which nonetheless could realistically be said to support the identification, is to defy the meaning of 'probative value'." We do not see this as an arguable point.

8. All in all, therefore: This application is out of time. Two of the three points do not, as we see them, arise from the decision of this court and they are, in any event, in our judgment, without merit. The remaining point is also devoid of merit. For these reasons, the application for a certificate under section 32 of the Court of Final Appeal Ordinance is refused.