HKSAR v. WONG FUNG

CACC 306/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 306 OF 1999

(ON APPEAL FROM DCCC 508 & 733 OF 1996)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

1. On 20 November 1996, the Applicant (D5 at trial) was convicted of two charges of wounding with intent and two charges of common assault, following a trial before Judge Chua in the District Court. The Applicant was sentenced to a total of 30 months' imprisonment and, considerably out of time, he now applies for leave to appeal against conviction. The Applicant did not file his notice of appeal until 8 June 1999. The reason for this is that he absconded during the trial and was convicted and sentenced in his absence. It was not until 26 May 1999 that he was re-arrested.

2. Accordingly, the notice of appeal has been lodged approximately 2 1/2 years late. It goes almost without saying that no good reason for being out of time in serving a notice of appeal has been advanced in the light of the circumstances which have brought about the delay of this hearing.

3. We are not precluded, of course, from looking de bene esse at the merits of the appeal for the purposes of ensuring that we do not shut out a ground which carries weight. With this in mind, we have looked at the merits of the arguments placed before us by Mr Mitchell-Heggs on the Applicant's behalf.

4. The perfected grounds of appeal extended to approximately four pages and were set out in about 16 paragraphs and sub-paragraphs, but these can be effectively encapsulated in a sentence. It is alleged that there was an irregularity in the trial because of the judge's refusal to stand aside to allow another judge to try the case in circumstances where there was a danger that the judge held a bias, or might be perceived to have held a bias, because of certain pre-trial events which were known to her.

5. Mr Mitchell-Heggs has argued that the perceived bias on the part of the judge arose because she had knowledge, not only of the pleas of the four co-defendants but, more importantly, of the agreed facts of those defendants in whose cases it was common ground between prosecution and defence that they had been allegedly led on and incited by D5 to commit the assaults on the victims named in the charges. Mr Mitchell-Heggs, who did not appear in the court below, emphasised that he was not alleging actual bias on the part of the trial judge.

6. In her Reasons for Verdict, the judge referred to the application, which she had rejected, made on behalf of D5 in these terms:

" I think it is appropriate at this point to say the 1st, 2nd, 3rd and 4th defendants pleaded guilty to lesser charges against them than were preferred against them on the original indictment. These pleas were accepted by the prosecution. In their respective agreed facts, there were references to D5 which were admitted to by the said defendants when put to them in court. These procedures took place before the trial against D5 started. (The defence solicitor) applied to have D5's trial before another judge on the basis that having heard and seen the admitted facts identifying D5 in the said attack by the other four defendants, I would be prejudiced against D5. I assured him as a professional juror I would ignore those admitted facts and refused the application. It would certainly have been better if those admitted facts had not identified D5. (The defence solicitor for D5) had not applied to (the prosecutor) nor any of the defence counsel to omit identification of D5. The basic principle remains the same; admissions only act against the maker. Those admitted facts played no part in my deliberations on the evidence in the trial of D5."

7. The judge had found herself in a familiar situation where some defendants in a multi-handed indictment had pleaded guilty and had blamed a co-defendant who intended to contest the charges with involvement in those offences. However, identification was the sole issue concerning the Applicant, and this, to an extent, distinguishes this case from others where broader evidential considerations are involved.

8. It may, in these particular circumstances, have been better if the judge had not tried the Applicant. The fact remains that the judge was professionally able to put out of her mind the allegations of the co-defendants, just as she would have been able to do if the trial had involved all the defendants where the Applicant would have been blamed by the others in their confession statements which were inadmissible as evidence against him.

9. The evidence against the Applicant was provided by three witnesses, all of whom happened to be police officers, who identified him having seen him in good lighting and in close proximity. The Applicant himself absconded at the close of the prosecution's case with the result that the evidence was all one way. The trial, of course, continued in the Applicant's absence as he had voluntarily absented himself. The evidence was overwhelming. The case against the Applicant was not in any way concerned with or affected by the admitted facts of his co-defendants. We have concluded, taking the test from R v Gough [1993] 97 Cr. App. R. 188, that there was no real danger of bias on the part of the trial judge.

10. Accordingly, we refuse leave to appeal out of time and the application is dismissed.