HKSAR v. AZAD MOHAMMAD FARHAN

CACC 173/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 173 OF 2015

(ON APPEAL FROM HCCC NO. 44 OF 2014)

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D E C I S I O N

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Hon Lunn VP (giving the Decision of the Court) :

1.  By a Notice of Motion filed with the Court on 13 June 2017 the applicant, more than 10 months out of time, invited the Court, pursuant to section 32(2) of the Court of Final Appeal Ordinance, Cap. 484, to certify that there are the following points of law of great and general importance involved in the decision of this Court, the reasons for which judgment were delivered on 21 June 2016, namely:

“ (1) When most or at least large parts of the Summing-up were not audible or when there is a doubt as to whether the jury fully and properly heard the Learned Trial Judge’s Summing-up and received the Learned Judge’s directions during the Summing up, should the Court of Appeal hold an enquiry and receive evidence from the jury to determine whether they fully and properly heard/received the Learned Judge’s directions during the Summing-up?

(2) What should be the proper procedure to determine whether the Jury fully and properly receive the Learned Judge’s directions during the Summing-up?

(3) When the Prosecution was allowed to and did cross‑examine the Applicant and comment as to the Applicant’s failure to call alibi witnesses during the trial, was that a breach of section 54(1)(b) of the Criminal Procedure Ordinance (Cap. 221) and a breach of the applicant’s right to silence?

(4) Was the Learned Judge’s direction to the jury that the Applicant was not obliged to call alibi witnesses and the potential witnesses might not be in a position to give alibi evidence sufficient to rectify the problem stated in the aforementioned Question 3? ”

2.  In an affidavit of Mr Philip Swainston, the solicitor assigned by the Director of Legal Aid to represent the applicant, filed with the Court on 13 June 2017, sought to explain the delay in making the application.　He noted that the Court did not deliver judgment in respect of the appeal against sentence until 15 July 2016. The applicant applied for the grant of legal aid to pursue the current application on 10 August 2016.　However, although a Legal Aid Certificate was issued on 24 October 2016, following the receipt of the advice of leading counsel, it was discharged on 16 January 2017. Then, following the applicant’s successful appeal against the order of discharge, a Legal Aid Certificate was issued on 8 May 2017.

The submissions of the respondent

3.  In his written submissions Mr David Chan, for the respondent, objected to the application for an extension of time in which to file this application. 　He pointed out that section 33(1) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 requires that an application to the Court of Final Appeal for leave to appeal shall be made within 28 days from the date of the decision of the Court of Appeal.  Further, he invited this Court to note that paragraph 3 of Practice Direction 2.2 requires that applications for a certificate to the Court of Appeal that the decision involves a point of law of great and general importance should be made immediately after the judgment is given from which the appeal is to be brought. Also, he said that regard was to be had to paragraph 4 of Practice Direction 4.3, which requires that any such application for a certificate to the Court of Appeal should be made within seven days of the handing down of the judgment from which the appeal is to be brought.

4.  He invited the Court to conclude that not only had the applicant failed to comply with the provisions of the Court of Final Appeal Ordinance, but also the applicant had failed to comply with the Practice Directions and was almost 12 months out of time.  He submitted that no good reason had been advanced for the delay.

The merits of the application

Questions 1 and 2

5.  Mr Chan submitted that the questions posed in Questions 1 and 2 were founded on the false premise that “…most or at least parts of the Summing-up were not audible”.  As this Court noted in its judgment, the issue of the audibility of the judge in her summing up was raised only once in the summing up.  Such responses as were elicited in reply to the judge’s enquiry of the jury as to whether or not they could and had been able to hear her summing up were in the affirmative.  Counsel for the applicant did not raise the matter thereafter.  For their part, the jury did not raise the matter either.

6.  Mr Chan submitted that no point of law of great and general importance arose from this Court’s judgment.  In any event, he submitted that it was only in a “rare and exceptional” case that the Court of Appeal would need to hear evidence from a juror or jurors.[1]

Questions 3 and 4

7.  Mr Chan submitted that no point of law of great and general importance as identified in Questions 3 and 4 were involved in the judgment.  Section 54(1)(b) of the Criminal Procedure Ordinance prohibits any comment by the prosecution on “…the failure of any person charged with an offence to give evidence”.  Since the applicant gave evidence the provision was irrelevant.  The applicant’s right of silence was not engaged.  In its judgment, the Court addressed the cross‑examination of the applicant and the comments made in the prosecution’s closing speech as to the fact that the applicant did not call witnesses in support of his alibi.  It was undisputed that a jury should not be invited to speculate about the reasons for not calling a witness.  The judge did give directions to that effect.  This Court was satisfied that they were adequate.  No point of law of great and general importance arises.

The applicant’s submissions in reply

8.  Although the applicant was invited to file submissions in reply to those submitted by the respondent, the applicant filed no such submissions.

A consideration of the submissions

9.  We accept the submissions made by Mr Chan that no good reasons have been advanced on behalf of the applicant as to why his application was made so many months out of time. Failure to comply with the time limit stipulated in the Practice Directions causes wholly unnecessary difficulties to the Court.  It has necessitated all the members of this Court to revisit the circumstances of the hearing in order to refresh memories of the matters that were canvassed more than one year ago.

The audibility of the judge’s summing up

10.  At the hearing of the application for leave to appeal against conviction no application was made on behalf of the applicant that the Court receive evidence from any of the jurors in respect of the issue of the audibility of the judge’s summing up.  That was not surprising, given that the issue of the audibility of the judge in her summing up was raised by Ms Panesar in approximately the middle of the summing up and resolved.  As was noted in the judgment, the response to the judge’s enquiry of the jury as to whether or not they could hear the judge then and in the earlier parts of the summing up was that “…by way of response, the forelady and one or two other jurors nodded affirmatively.” [2]  No other complaint was made by Ms Panesar during or at the conclusion of the summing up.[3]  On the second day of the hearing, without any notice at all, Ms Panesar asked the Court to receive evidence from her solicitor’s interpreter at the trial on the issue of the audibility of the judge’s summing up.  No affirmation or draft statement of the proposed witness was provided to the Court.  The Court rejected that bare application.[4]

11.  We are satisfied that the questions posed in Questions 1 and 2 are not involved in the judgment of this Court.

Questions 3 and 4

12.  As noted earlier, the applicant testified at his trial.  It follows that the provisions of section 54(1) of the Criminal Procedure Ordinance were irrelevant.  No question arose of the applicant’s right of silence being infringed.  On the other hand, as was noted in the judgment of this Court, there was cross-examination of the applicant by the prosecution on the issue of whether or not the applicant proposed calling his roommate(s) as alibi witness(es).  Similarly, there was comment adverse to the applicant relevant to that issue in the prosecution’s closing speech.

13.  The judge directed the jury that the applicant “…was not obliged to call any witnesses”.  Of the judge’s directions in that regard, this Court concluded:

“ Given the judge’s direction that the applicant was not obliged to call witnesses to support his account of events, including his alibi, having regard to her specific reminder of the undisputed evidence that none of the four roommates was in a position to give supporting evidence of the applicant’s alibi, we are satisfied that in all circumstances the judge correctly and adequately dealt with any suggestion by the prosecution that inferences adverse to the applicant were to be drawn from the absence of other evidence supporting the applicant’s testimony.”

14.  Clearly, in those circumstances no question of law of great and general importance arises.  The only issue was whether or not the judge’s unambiguous and correct directions in law were sufficient to traverse the impermissible line of reasoning suggested by the prosecution.

Conclusion

15.  In all the circumstances, we refuse the application to certify the stipulated questions as identifying points of law of great and general importance involved in our decision.