HKSAR v Ng Fan Ying (2021) 24 HKCFAR 428, [2021] HKCFA 44

Marc Corlett QC (leading Marco Tse) appeared for the appellant at the Court of Final Appeal in HKSAR v Ng Fan Ying (2021) 24 HKCFAR 428, [2021] HKCFA 44.

At trial, D sought to cross-examine the principal prosecution witness in respect of matters which fell outside the charge periods. The Magistrate imposed certain restrictions in respect of this line of questioning, ruling such cross-examination was solely relevant to credit. The Magistrate accepted the witness’s evidence, D was convicted and her appeal against conviction dismissed. On appeal to the Court of Final Appeal, D submitted, inter alia, that the core issue at trial was whether the witness’s story was true, those matters falling outside the charge periods forming part of the same story. D argued that the cross-examination would have been aimed at showing that the witness had lied in respect of those matters. Had that been demonstrated, the Court would have found it difficult to attach weight to her evidence in respect of matters which occurred within the charge periods. Accordingly, it was argued that the veracity of her allegations about those matters was relevant to live issues, the restrictions ought not to have been imposed, and D should have been at liberty to lead rebuttal evidence in respect of those matters.

Held, unanimously dismissing the appeal, that:

(Per Lam PJ, the other Judges agreeing)

• (1) The distinction was between cross-examination on primary and collateral issues, the latter including evidence relevant to credit only. There was no further distinction between cross-examination on general credit and on credit regarding matters closely related to the subject matter of the charge. Where cross-examination was only relevant to credit, the usual restriction and the finality rule should be applied, even when the witness’s credibility was of crucial importance to *429 the prosecution case (HKSAR v Wong Sau Ming (2003) 6 HKCFAR 135, HKSAR v Kong Wai Lun (2015) 18 HKCFAR 7 applied; R v Funderburk (Roy) (1990) 90 Cr App R 466, HKSAR v Cheung Hok Man [2011] 3 HKLRD 810 explained). (See paras.28, 37 – 45.)
• (2) The ultimate benchmark for permitting cross-examination on credit was relevance. When it was demonstrated that the probative value of a line of cross-examination clearly outweighed any potential for confusion or obfuscation by introducing collateral issues, the discretion should be exercised favourably (HKSAR v Wong Sau Ming (2003) 6 HKCFAR 135, HKSAR v Kong Wai Lun (2015) 18 HKCFAR 7 applied). (See paras.22 – 27, 32, 45.)
• (3) The suggestion that a witness told lies on a previous occasion was an imputation of misconduct. A solid foundation had to be laid for casting such an imputation, absent which the question would have no relevance to the assessment of the witness’s veracity and should not be allowed (Persad and Jairam v Trinidad and Tobago [2001] UKPC 2, HKSAR v Wong Sau Ming (2003) 6 HKCFAR 135, HKSAR v Kong Wai Lun (2015) 18 HKCFAR 7, Clarke v Trinidad and Tobago [2021] UKPC 16 applied). (See paras.33 – 36, 46.)
• (4) A cross-examiner who sought to cross-examine by reference to events unconnected with those giving rise to the prosecution, was required to clearly explain the relevance and basis of the proposed cross-examination, and provide all material information, to enable the court to assess the probative value of the proposed cross-examination (HKSAR v Wong Sau Ming (2003) 6 HKCFAR 135, HKSAR v Kong Wai Lun (2015) 18 HKCFAR 7 applied). (See paras.31, 47 – 48.)
• (5) In the circumstances, there was no ground for interference with the Magistrate’s exercise of discretion, nor did the restrictions imposed give rise to substantial or grave injustice. (See paras.50 – 68.)

[The above is excerpted from the headnote to the report in HKLRD.]