CHONG CHING YUEN v. HKSAR

FAMC No. 29 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 29 OF 2003 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 274 OF 2002)

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DETERMINATION

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Mr Justice Bokhary PJ:

1. This is an unusual set of circumstances. The criticism made against trial counsel for the defence does not rest simply on the client's allegations. There is what can be gathered in support of such criticism from a report prepared by counsel himself in an endeavour to answer such criticism. In all the circumstances we think that it is reasonably arguable that the case did not proceed in accordance with accepted norms. On the substantial and grave injustice ground, this matter ought to receive the attention of the Court of Final Appeal. We grant leave to appeal accordingly.

2. Appeals based on counsel's alleged incompetence are not an easy aspect of the law. So far no such appeal has ever reached the Court of Final Appeal. It seems likely that the prosecution will be represented by leading counsel at the appeal. It is no reflection at all on Mr Wong's ability that we express our view that it would be appropriate for the Director of Legal Aid to brief leading counsel as well as Mr Wong.

[An application for bail pending appeal was not opposed. The applicant was granted bail pending appeal on the following terms: $50,000 cash bail; surrender of all the applicant's travel documents to the Registrar of the Court of Final Appeal; and the applicant's undertaking not to leave the jurisdiction without leave of a judge of the Court of Final Appeal.]

Representation:

Mr H.Y. Wong (instructed by Messrs George Tung, Jimmy Ng & Valent Tse assigned by the Director of Legal Aid) for the applicant

Mr Alex Lee (of the Department of Justice) for the respondent