KWOK HUNG FUNG v. HKSAR

FAMC No. 13 of 1997

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 13 OF 1997 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA No. 289 OF 1997)

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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. This is the Appeal Committee's determination.

2. We have before us an application - made out of time and therefore requiring an extension of time - for leave to appeal to the Court of Final Appeal against a conviction for robbery.

3. That conviction was in the Magistrate's Court on 27 February 1997. There was an appeal to the High Court. That appeal was dismissed by that court on 27 June 1997. The prescribed time for applying for leave to bring a final appeal was within 28 days of the High Court's decision. But it was not until almost half a year later, on 17 December 1997, that the applicant's application for such leave was filed. That is why he requires an extension of time.

4. Dealing with criminal cases, s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that:

"Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the High Court, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done."

5. The applicant does not suggest that any point of law of great and general importance is involved here. Instead he invokes the second basis for leave to bring a final appeal in a criminal case. That is the basis provided for by the "substantial and grave injustice" limb of s.32(2).

6. That limb could do with a word of explanation. Read out of context, the words "Leave to appeal shall not be granted unless ... it is shown that substantial and grave injustice has been done" are liable to be misunderstood. For so read, they might be thought to mean that substantial and grave injustice has to be shown in the sense of being demonstrated before leave to appeal can be granted. But that would be palpably absurd. For if substantial and grave injustice were demonstrated, that would be a case for allowing an appeal and not merely granting leave to pursue one.

7. No mystery need surround the choice of the formula "shown that substantial and grave injustice has been done" in s.32(2). It is readily to be inferred that it was taken from the decision of the Privy Council in Re Dillet (1887) 12 App Cas 459. Mr Dillet was a barrister who challenged his conviction for perjury and a consequential order striking him off the roll of practitioners. Delivering their Lordships' advice in that case, Lord Watson said (at p.467) that

"the rule has been repeatedly laid down, and has been invariably followed, that Her Majesty will not review or interfere with the course of criminal proceedings, unless it is shewn that, by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done."

That test (which was reiterated by the Privy Council in the court-martial case of Kamarul Azman v. Wan Abdul Majid [1983] 1 WLR 578 at pp 583H-584A) is the one by which appeals are decided on the merits. It was laid down by Lord Watson in the course of delivering their Lordships' advice to Her Majesty that Mr Dillet's appeal should be allowed so as to quash his conviction and restore him to the rolls.

8. At the leave stage, however, their Lordships' advice to Her Majesty was delivered by Lord Blackburn. And the basis on which Her Majesty was advised that Mr Dillet should have leave to appeal is that there was "ground for inquiry" (p.465) so that he "ought to be permitted on appeal to shew, if he can, that ... his conviction was obtained in so unsatisfactory a manner that the conviction alone ought not to be conclusive as a ground for striking him off the rolls" (p.466).

9. Therefore what an applicant has to do in order to obtain leave to bring a final appeal in a criminal case on the ground that substantial and grave injustice has been done is to make out a reasonably arguable case to that effect.

10. But even that more modest objective, it must be emphasised, would not be an easy one to achieve. As the Appeal Committee said in Zeng Liang Xin v. HKSAR [1997] HKLRD 1204 at p.1212G, the second limb of s.32(2) "imposes a high hurdle." The Court of Final Appeal does not sit as a court of criminal appeal in the ordinary way. In the administration of criminal justice, its primary role is the one under the first limb of s.32(2). And that is to resolve real controversy on points of law of great and general importance. The second limb is a residual safeguard designed for those rare and exceptional cases in which there is a real danger of something so seriously wrong that justice demands an inquiry by way of a final criminal appeal despite the absence of any real controversy on any point of law of great and general importance.

11. The applicant's conviction was based - if not solely then at least substantially - on a verbal confession to the robbery with which he was eventually charged. According to the arresting constable, the applicant, an unauthorized entrant in his early twenties, had made that confession at the time of his arrest. The applicant denied making it. But the Magistrate found that he had made it.

12. Apart from that verbal confession, the prosecution sought to rely on a written confession to robbery signed by the applicant at the police station to which he had been brought after his arrest.

13. The applicant alleged that the police had used violence against him both at the time of his arrest and later on in the police station. He said that his written confession had been extracted by police violence at the police station. The Magistrate held an inquiry into the admissibility of the written confession.

14. In the result, the Magistrate excluded the written confession. That was not because he believed the applicant's allegations of police violence. On the contrary, he said in terms that he did not believe those allegations. But he found himself nevertheless left with a reasonable doubt as to whether or not something untoward had occurred in connection with the making of the written confession. That is why he excluded it.

15. Despite the applicant's allegation that the arresting constable had used violence on him at the time of his arrest, no inquiry was held into the admissibility of the verbal confession said to have been made at that time.

16. The failure to hold such an inquiry in the present case is put forward by counsel for the applicant as one of the matters - indeed the principal one - constituting substantial and grave injustice. Counsel for the respondent concedes that the Magistrate should have held such an inquiry.

17. But even assuming that to be so, the mere failure to hold such an inquiry would not constitute substantial and grave injustice or indeed any injustice at all if two things were plain. The first is that it would have been properly open to the Magistrate to rule the verbal confession admissible if he had held an inquiry into its admissibility. And the second is that he would inevitably have so ruled in such an inquiry.

18. If both of those things are plain, then on any view the course of the trial in the present case would be no worse than the course of the court-martial in Kamarul Azman v. Wan Abdul Majid (supra). In that case (as Lord Fraser of Tullybelton said at p.584 B in the course of delivering the Privy Council's advice that the appeal should be dismissed) "there [had] been a 'disregard of the forms of legal process' but it [had] not led to 'substantial and grave injustice' being done."

19. Since we are at the leave stage, the test in the case of each of the two things in question is whether it is plain beyond reasonable argument to the contrary.

20. As to the first thing, it is to be remembered that in excluding the written confession the Magistrate had expressly rejected the applicant's allegations of police violence. For the purpose of the function which the Magistrate was performing, rejecting such allegations must mean feeling sure that there was no truth in them.

21. That state of mind is reconcilable with having a reasonable doubt as to whether or not something else affecting the admissibility of the written confession had occurred. Speaking in general, such an occurrence could be due to nothing worse than the inefficiency on the occasion of the police officers concerned, some of them or at least one of them. It would not necessarily impact upon the credibility of any of them. Turning from the general to the particular, whatever the Magistrate feared might have occurred, it could not have been anything which he thought might impact upon the credibility of the arresting constable. Otherwise it is inconceivable that the Magistrate would have found that constable, as he expressly did, a "truthful" witness. So the first thing is plain beyond reasonable argument to the contrary.

22. Turning to the second thing, we say at once that it, too, is plain beyond reasonable argument to the contrary. That emerges from the simple fact that the Magistrate acted on the verbal confession to convict. For it is inconceivable that he would have done so unless he felt sure that the circumstances were indeed as the arresting constable had testified. And the circumstances being so could mean only one thing: the applicant had been treated properly and had chosen to confess to the robbery.

23. There are other points which were urged before us on behalf of the applicant. It suffices to say that they are all so obviously lacking in substance as to warrant rejection without discussion.

24. For the foregoing reasons, the applicant has failed to make out a reasonably arguable case to the effect that substantial and grave injustice has been done.

25. Accordingly leave to appeal to the Court of Final Appeal would have to be refused even if an extension were granted for seeking such leave. In those circumstances, this application for such leave out of time is dismissed.

Representation: