LO PUI SHING AND ANOTHER v. HKSAR

FAMC Nos. 12 & 28 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOs. 12 & 28 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 145 OF 2003)

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1. In addition to the argument advanced on behalf of both applicants by Mr Andrew Bruce SC for the first and Mr Michael Blanchflower SC for the second, there are two arguments advanced by Mr Blanchflower for the second alone.  The first of these arguments for the 2^nd applicant alone is that Her Honour Judge Chua erred in how she treated his decision not to testify.  And the second one is that she erred in her treatment of the evidence relevant to the drawing of inferences.  Despite the skill with which Mr Blanchflower advanced these arguments, there is simply no foundation for an argument that the judge made the fundamental error ¾ for the error would have been fundamental if she had made it ¾ as to how to treat the 2^nd applicant’s decision not to testify.  As for the judge’s treatment of the evidence relevant to the drawing of inferences, there is no reasonably arguable case of a departure from accepted norms in how she went about her task or in how the Court of Appeal reviewed her decision.  This leaves the argument common to both applicants, as to which position is as follows.

2. Defence counsel cross-examined a prosecution witness on her out-of-court statements with a view to showing that there were inconsistencies between her testimony and those statements which cast doubt on her testimony.  The judge rejected the defence argument that there were such inconsistencies.  In the course of doing so, she used expressions which called for a careful examination by the Court of Appeal to see if she had crossed the line over to relying on the witness’s previous consistent statements to bolster the witness’s credibility.  The Court of Appeal conducted the careful examination called for.  Having done so, they concluded that, looking at the things which the judge said in the context in which she said them, she had not crossed that line.  Leave to appeal is sought for the purposes of inviting the Court of Final Appeal to come to a conclusion opposite to the one reached by the Court of Appeal. 

3. Reaching a conclusion on an issue of this kind is quintessentially a matter for an intermediate appellate court.  Neither in the way in which the Court of Appeal reached its conclusion nor in the conclusion itself do we detect any arguable departure from accepted norms.

4. In the result, leave to appeal to the Court of Final Appeal is refused.