HKSAR v. CHAN SAU HING AND ANOTHER

CACC 211/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 211 OF 2001

(ON APPEAL FROM DCCC 748 of 2000)

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J U D G M E N T

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Hon Stock JA:

1 Chan Sau-hing: The suggestion by the judge is to the effect that this applicant, who gave evidence for the prosecution, was not forthcoming. My attention has been drawn by prosecuting counsel today to page four of the transcript, where there is a very broad summary of the evidence this applicant gave. It seems to me that this applicant should have leave to appeal against sentence which, I must emphasize, is not to say that she is necessarily going to succeed, but merely that I think it is just that the court should examine her evidence to see whether indeed it can properly be said that her evidence was of no use at all to the prosecution. I grant leave to appeal against sentence, and I will order that a transcript of her evidence be provided.

2 Leung Siu Man: I shall grant this applicant leave to appeal against conviction and it follows that the question of sentence will be determined in the applicant's favour, should she succeed on conviction. However, if the appeal against conviction is dismissed, I see no prospect of success on the question of sentence, and to that extent, her application for leave to appeal against sentence is not granted. Should she fail on conviction, she may renew her application in relation to sentence, to the full court.

3 In giving leave on the question of conviction it should not be taken by the applicant as my saying anything at all about the prospect of success. In giving leave, I mean no more than that the case of D16 should have further consideration. Amongst the matters worthy of consideration, I think, are these:

1. The judge was influenced, it seems, by the fact that PW2 said that he went round to identify staff members of the company he had seen earlier. Yet it might be argued that the suggestion that D16 was a staff member can only come from the evidence of what PW2 said that he saw her do, not from some supposition on his part. All he saw her do was tell him she worked for a cosmetics firm.

2. The judge relies on documents signed by D16. Presumably victims also signed documents. I do not know what documents were signed by D16. I direct that such documents signed by D16 as were adduced in evidence should be placed in the bundle.

3. It is said by the judge that one similarity of the evidence of all the innocent victims was that none of them got the chance to meet other new recruits at the premises. I do not know whether the evidence was that this never happened even in passing, in the manner of PW2's meeting with D16.

4. The court will also wish to examine the judge's treatment of this defendant's failure to give evidence, though my preliminary view is that the judge's approach to this particular aspect was correct.