CHAN SIU KEUNG v. HKSAR

FAMC No. 43 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

 MISCELLANEOUS PROCEEDINGS NO. 43 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 348 OF 1996)

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Between:

	CHAN SIU KEUNG	Applicant
	and
	HONG KONG SPECIAL ADMINISTRATIVE REGION	Respondent

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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing : 5 October 2005

Date of Determination : 5 October 2005

 

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1.  This applicant seeks leave to appeal to the Court of Final Appeal from the Court of Appeal’s judgment affirming his convictions for drug trafficking and drug manufacturing reached at a trial in the High Court before Deputy Judge Jackson (later Jackson J) and a jury.  The application is very much out of time.  We put that to one side for the moment.

2.  Leave is sought under the “substantial and grave injustice” limb of s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.  The trial judge had permitted evidence of a disputed oral admission by him to be placed before jury without examining its voluntariness in a voire dire.  That was before the Privy Council delivered its advice in Thongjai v. R [1997] HKLRD 678.  Dealing with the matter after the Privy Council had delivered its advice in that case, the Court of Appeal said that the failure to hold a voire dire in respect of the applicant’s oral admission was an error of law by which he had been deprived of an important safeguard.  But they were satisfied that no miscarriage of justice had resulted.  So they applied the proviso.

3.  It is submitted on the applicant’s behalf that substantial and grave injustice was done to him by the trial judge’s failure to hold a voire dire followed by the Court of Appeal’s application of the proviso.  In our view, it is clear beyond reasonable argument to the contrary that the Court of Appeal’s application of the proviso did not stray beyond accepted norms.  In those circumstances, leave would be refused even if we were to extend time.  Quite simply, leave to appeal is refused.

 

 

(Kemal Bokhary) Permanent Judge

(Patrick Chan) Permanent Judge

(R.A.V. Ribeiro) Permanent Judge

 

Mr Wong Chi Wai, Philip (instructed by Messrs Tang, Wong & Cheung and assigned by the Legal Aid Department) for the applicant

Mr Gavin Shiu and Mr Isaac Tam (of the Department of Justice) for the respondent