LAU TAT KEUNG v. HKSAR

FAMC No. 30 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 30 OF 1999 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 4 OF 1999)

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DETERMINATION

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Mr Justice Bokhary PJ:

1. This applicant was found guilty by a jury on four counts. Three of them (being the 1st, 4th and 5th counts) were of possession of arms and ammunition without a licence. One of them (being the 3rd count) was of shooting with intent. He launched proceedings in the Court of Appeal seeking the quashing of his convictions on the 1st, 3rd and 5th counts. But when he came before that court, he abandoned his application in respect of his conviction on the 5th count. He sought only the quashing of his convictions on the 1st and 3rd counts. Having failed before the Court of Appeal, he now seeks leave to appeal to the Court of Final Appeal against those convictions.

2. Shortly stated, the prosecution's case was as follows. The applicant became infatuated with a woman who was not interested in him. Her romantic interest was in another man. On the evening of 18 November 1997 that other man (whom we will call "the victim") was accosted, chased, shot and wounded in the lift lobby of a domestic block. This shooting was the subject-matter of the 3rd count, while the weapon which must have been used to do such shooting formed the subject-matter of the 1st count.

3. On the occasion of the shooting the victim saw his attacker's face or profile several times. At one stage this was while the victim still had his glasses on and he and his attacker were face-to-face for a brief moment about three feet away from each other.

4. At an identification parade held eight days later, the victim picked out the applicant as the man who had shot him.

5. At the trial the main evidence against the applicant was the evidence of the victim who identified him as the attacker. That identification had an element of "recognition" about it in this sense. The victim said that he had been introduced to the applicant about two months before the shooting. That introduction had been made by the woman whom we mentioned earlier. It took place at her home. The victim had turned up while the applicant was on the premises installing a ventilation fan.

6. The victim was shown a number of still photographs. Those photographs had been extracted from what the block's CCTV system had recorded on the evening of the shooting. He said that the man shown in the photographs looked 80% like the person who shot him.

7. Identification was the real issue at the trial, in the Court of Appeal, and now before us.

8. The applicant failed to persuade the Court of Appeal to certify the involvement of a point of law of great and general importance. He now asks us to grant him leave to appeal to the Court of Final Appeal. He asks us to do so under both limbs of s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.

9. As to the "point of law of great and general importance" limb, he has put forward five questions. In so far as those questions are questions of law at all, none of them raise any point of law which has not already been well settled. All of those questions concern how established principles of criminal law are to be applied to the facts of a particular case. That goes to the roles of trial courts and intermediate appellate courts. It does not go to the role of the Court of Final Appeal under the "point of law of great and general importance" limb.

10. Of course there still remains the "substantial and grave injustice" limb. This Committee has said time and again that the Court of Final Appeal does not sit as a second court of criminal appeal. And that was repeated by the Court itself in So Yiu Fung v. HKSAR, FACC No. 5 of 1999, 14 December 1999. There the Court said (at p.6) that:

"In order for an appeal brought under the 'substantial and grave injustice' limb of s.32(2) of the Hong Kong Court of Final Appeal Ordinance to succeed, it must be shown that there has been to the appellant's disadvantage a departure from accepted norms which departure is so serious as to constitute a substantial and grave injustice."

11. So if the lower courts' application of principle amount to such a departure, then the Court of Final Appeal can intervene under the "substantial and grave injustice" limb. To obtain leave to appeal under this limb, an applicant must show a reasonably arguable case of such a departure. The hurdle is a high one. In our view, this applicant has not come close to surmounting it.

12. There is no real controversy as to the law in this case. As to its application, the Court of Appeal has concluded that the jury was properly directed following a trial on admissible and sufficient evidence, and that the convictions are neither unsafe nor unsatisfactory. Those conclusions were arrived at in a normal way and by normal standards. There this matter must end.

13. This application is dismissed.