HKSAR v. SEE WAH LUN AND OTHERS

CACC370/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 370 OF 2009

(On Appeal From High Court Criminal Case No. 13 of 2009)

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BETWEEN

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Hon Cheung JA (giving decision of the Court) :

1.  In the Notice of Motion the applicants applied for a Certificate from this Court under section 32(2) of the Hong Kong Court of Final Appeal Ordinance (‘the Ordinance’)(Chapter 484) that the following point of law of great and general importance is involved in the decision:

‘ Whether an accused had a fair trial, if he is unable to observe and immediately confront and prevent a witness testifying by way of a live television link, from “reading his witness statements in the course of giving evidence”…’

2.  Mr. Boyton, counsel for the applicants, recognized that this question appears to fall within the ‘grave and substantial injustice’ limb of section 32(2) of the Ordinance which is a matter that does not concern this Court.  He asked for leave to amend the question as follows :

‘ When a court orders that a witness may testify by way of live television link in accordance with section 79B of the Criminal Procedure Ordinance, is it implicit in that order that the defendant should be able to see whether or not the witness is referring to his witness statement or other documents in the course of his or her testimony?

3.  In our view, the new question does not arise at all.  First, there is no law or practice restricting the parties from seeing the whole of the witness when he gave evidence by the live television link.  If the parties wished to see him fully, they could have asked for the angle of the camera to be adjusted.  Second, the new question as framed was not an issue before us on appeal.  It was not argued that there was an unfair trial because of the restricted view of the witness.

4.  Accordingly we will refuse the application to amend and will dismiss the notice of motion with costs to the Respondent.