HONG WAI NGAR v. HKSAR

FAMC000022/2004

FAMC No. 22 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 22 OF 2004 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 1216 OF 2003)

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Between:
HONG WAI NGAR 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: 15 June 2004

Date of Determination: 15 June 2004

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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. If the magistrate felt sure that the truth came from the police officers and not from the applicant, it was properly open to himto convict. He was sure of that. While there may well be imperfections in some of his lines of reasoning, they relate to mattersfar less important than his impression of the witnesses. There is no reason to fear that he failed to make proper use of the advantageof receiving their evidence at first-hand.

2. The appeal judge, Beeson J, is criticised for failing to consider “potential grounds of appeal” available to the applicant. Thiscomplaint is to the effect that Beeson J should have taken a more pro-active role in the favour of the applicant who was then inperson although legally represented at the trial and now before us. But Beeson J would have had the feel of the intermediate appeal.And we see no reason to second-guess her assessment of what justice reasonably required. As to the complaint that Beeson J failedto give sufficient reasons, we see no reasonable basis for saying that a case like this one required an appeal judge to say morethan that the trial court had not erred, which is the gist of what Beeson J said.

3. It is not reasonably arguable that there has been a departure from accepted norms. Accordingly this application for leave to appealto the Court of Final Appeal on the substantial and grave injustice ground is dismissed.

(Kemal Bokhary) (Patrick Chan) (R.A.V. Ribeiro)
Permanent Judge Permanent Judge Permanent Judge

Representation:

Mr Cheng Huan SC (instructed by Messrs Tang, Wong & Cheung and assigned by the Legal Aid Department) for the applicant

Mr Kevin P Zervos SC (of the Department of Justice) for the respondent