案例名称 HKSAR v MA WAI KWAN

案例名称HKSAR v. MA W AI KWAN, David AND OTHERS

审理法院Court of Appeal of the High Court

案件类别Reservation of Question of Law

受理日期

判决日期1997.07.29

HKSAR v. MA WAI KWAN, David AND OTHERS

CAQL000001/1997

IN THE HIGH COURT OF THE HONG KONG

SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

Reservation of Question of Law No. 1 of 1997

Between

HKSAR Applicant

AND

MA WAI-KWAN, David,

Respondents

CHAN KOK-WAI, Donny

and TAM KIM-YUEN

__________

Coram: The Hon Chan, Chief Judge, Nazareth V-P and Mortimer V-P

Dates of Hearing: 22, 23, and 24 July 1997

Date of Judgment: 29 July 1997

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J U D G M E N T

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Chan, Chief Judge :

Background

1. The respondents are the three defendants in a criminal trial before the Court of First Instance. They were charged on 11th August 1995 with conspiracy to pervert the course of public justice, contrary to common law. It is alleged that between 12th and 29th June 1995, the three respondents conspired together by offering to pay money to the mother of a Mr Wong who was then charged with robbery before the District Court together with the 3rd respondent and another person. It is further alleged that the purpose of offering money to the lady was to serve as a reward for her son Mr Wong pleading guilty to a lesser offence and maintaining a false version of events which would favour the 3rd respondent and the other person. They were committed for trial in the then High Court after a preliminary inquiry which took several days in December 1996. On 3rd January 1997, Indictment No.1 of 1997 was filed against them. The 3rd respondent also faced an alternative charge of attempting to pervert the course of public justice.

2. The trial was fixed for hearing on 16th June 1997. The first few days were spent on sorting out prosecution witness statements and other documents. On the fifth day of the trial, the 2nd respondent applied for a permanent stay of the criminal proceedings. This lasted several days. On 27th June 1997, the last working day before 1st July, the trial judge, Deputy Judge Lugar-Mawson, refused to stay the proceedings.

3. On 3rd July 1997, the tenth day of the trial, the respondents took issue on the Reunification Ordinance, the Basic Law and the preservation of the common law. On 7th July 1997, which was the twelfth day of the trial, the three respondents were, with their consent, arraigned on an amended indictment which was filed on 19th June 1997. They all pleaded not guilty to the first count of conspiracy to pervert the course of public justice. The alternative count against the 3rd respondent was directed by the Court to be put on file, not to be proceeded with without the leave of the Court. The respondents then applied to the Deputy Judge to quash the Amended Indictment. The prosecution opposed this application and applied to reserve certain questions of law for the determination by the Court of Appeal pursuant to section 81 of the Criminal Procedure Ordinance, Cap.221. There was no objection from the respondents. The Deputy Judge made the order.

4. On 9th July 1997, at a hearing for directions before us, we drew the parties' attention to s.81 of Cap 221 which provides that the questions of law reserved for this Court must be on matters arising from the trial. On the following day, the parties went before the Deputy Judge. His order was amended, apparently with the consent of all parties. This is now before this Court. Representation of the parties

5. I should mention that since the questions of law to be determined by this Court involve some important constitutional issues, we requested the Director of Legal Aid to brief leading counsel for the 3rd respondent. However, as it turned out, the Director decided not to do so and was prepared only to instruct junior counsel to hold a watching brief. Pursuant to our directions, counsel for the 2nd respondent filed his skeleton arguments on the questions of law to be decided. Counsel for the 1st respondent indicated that he would adopt those submissions.

6. On the first day of this hearing, counsel for both the 2nd and 3rd respondents informed us that they had no instructions to act for their clients because of lack of funds. They asked to be released from the case. We gave leave to the solicitors to withdraw but invited both counsel to stay and make submissions on the issues before the Court. They agreed to do so. In the afternoon, Ms Gladys Li, SC, Miss Margaret Ng and Mr Paul Harris appeared before us and offered to assist the Court on the issue of the legality of the Provisional Legislative Council. Counsel for the