HKSAR v. MOHAMMAD AFZAL AND ANOTHER

CACC 401/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 401 OF 2007

(ON APPEAL FROM DCCC NO. 210 OF 2007)

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BETWEEN

HKSAR Respondent
and
MOHAMMAD AFZAL (D1) 1st Applicant
MUJTABA GHULAM (D2) 2nd Applicant

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Before: Hon Tang VP, Yuen JA and Barnes J in Court

Date of Hearing: 21 August 2008

Date of Decision: 21 August 2008

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DECISION

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:

1. This is an application under section 32 of Hong Kong Court of Final Appeal Ordinance, Cap. 484, for a certificate that a point of law of great general or public importance is involved in our decision. The two questionswhich are said to be involved are set out in the Amended Notice of Motion. They are:

“a) In a case where there are material discrepancies in the testimony and out of court witness statement of a witness, how shoulda trial Judge evaluate the witness’ testimony and resolve the discrepancies?

b) Should a defendant be deprived of the benefit of a reasonable doubt arising from material discrepancies in the prosecutioncase?”

2. Basically, as I understand Mrs Panesar’s submission, and the very detailed written submission which she has supplied to the court,the point arose, in particular, in relation to the evidence of PW1, who after giving evidence-in-chief, was cross-examined on thedefence’s behalf. It was during the cross-examination that a previous statement made out of court by him was put to him and itwas said that there were discrepancies between his earlier statement and his testimony in court.

3. But the learned judge was aware of the submission that there were such discrepancies and he was satisfied that those discrepanciesdid not detract from PW1’s credibility. That is how such matters are normally resolved. There is nothing in this matter whichamounts to a point of law of great general or public importance.

4. As for the second question, if there is any reasonable doubt, the law is well settled that the defendants shall have the benefitof the doubt. So this is not a question that needs to be revisited by the Court of Final Appeal.

5. So in my opinion, neither of the question raises any point of law of great general or public importance.

6. That being the case, I would not certify either question.

Hon Yuen JA:

7. I agree.

Hon Barnes J:

8. I also agree.

(Robert Tang)
Vice-President

(Maria Yuen)
Justice of Appeal

(Judianna Barnes)
Judge of the Court of First Instance

Mr. Cheung Wai Sun, SADPP & Ms. Winnie Lam, Ag. SPP, of Department of Justice, for the Respondent

Mrs. M. Panesar, instructed by Messrs Francis Kong & Co., assigned by Director of Legal Aid, for the Applicants