HKSAR v. Ngan Wai Yeung

CAC C 69/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 69 OF 2015

(ON APPEAL FROM DCCC NO. 624 OF 2014)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.On 4 March 2016, the Court handed down its reasons for judgment dismissing the applicant’s renewed application for leave to appeal against conviction. The applicant’s application for leave to appeal against conviction and sentence had earlier been dismissed by a single judge of the Court of Appeal on 23 October 2015.

2.On 21 June 2016, out of time by about three months, the applicant applies, pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) for a certificate that the following points of laws of great and general importance are involved in the decisions dated 23 October 2015 and 4 March 2016, namely:

(1)   Where, pursuant to section 83Y(2)(a) of the Criminal Procedure Ordinance (Cap 221), a single Justice of Appeal has dismissed an application for leave to appeal against conviction and/or sentence (“the initial application”), can that single judge lawfully be a member of the Court of Appeal to hear and determined a renewed application, pursuant to section 83Y(3) of the Criminal Procedure Ordinance, for leave to appeal against conviction and/or sentence (“the renewed application”)?

(2)   Does the decision of a single Justice of Appeal to dismiss the initial application amount to disqualifying pre-determination such that the single Justice of Appeal cannot lawfully sit to hear and determine the renewed application as a member of the Court of Appeal?

(3)   Did the presence of the single Justice of Appeal in the initial application as a member of the Court of Appeal in the renewed application render the Court of Appeal inquorate?

3.Identical issues were involved in HKSAR v Md Emran Hossain (CACC 330/2014) and this Court (differently constituted), having heard full and detailed arguments, concluded that the same three questions as those put forward by the applicant were not reasonably arguable.

4.This Court is bound by the decision in Md Emran Hossain(supra).  The application is therefore dismissed.

Written submission by Mr William Tam SC, DDPP, of the Department of Justice, for the respondent

Written submission by Mr PY Lo, instructed by Hoosenally & Neo, assigned by the Director of Legal Aid, for the applicant