Secretary for Justice v. Wong Chi Fung

FAMC Nos. 31 - 33 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 31 OF 2017 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CAAR NO. 4 OF 2016)

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BETWEEN

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AND

MISCELLANEOUS PROCEEDINGS NO. 32 OF 2017 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CAAR NO. 4 OF 2016)

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BETWEEN

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AND

MISCELLANEOUS PROCEEDINGS NO. 33 OF 2017 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CAAR NO. 4 OF 2016)

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DETERMINATION

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Appeal Committee:

1.The applicants have each applied for leave to appeal to the Court of Final Appeal from a decision of the Court of Appeal based both on the ground that a point of law of great and general importance is involved and that it can be shown that substantial and grave injustice has been done.

2.After hearing counsel, we give leave to appeal only on the following issues:

All applicants

(1) To what extent can the Court of Appeal on an application for review of sentence under s.81A of the Criminal Procedure Ordinance, Cap 221 reverse, modify, substitute or supplement the factual basis on which the original sentence was based?

(2) To what extent should a sentencing court take into account the motives of a defendant in committing the crime of which he or she has been convicted, particularly in cases where it is asserted that the crime was committed as an act of civil disobedience or in the exercise of a constitutional right?

(3) Insofar as the Court of Appeal was seeking to do so at all, in arriving at the appropriate sentences for the applicants, to what extent ought the Court of Appeal have made allowance for the assertion made by them that guidelines to sentencing courts for the future were being given?

Applicant in FAMC 31 of 2017 (Wong Chi Fung)

(4) To what extent should the Court of Appeal have taken into account s.109A of the Criminal Procedure Ordinance, Cap 221?

3.The hearing of the appeal will be fixed for January 16, 2018. All parties are to attend before the Registrar immediately after this hearing for directions as to the further conduct of the appeal.  Where necessary and to the extent to be determined by the Registrar, there will be an abridgment of the times stated in the Hong Kong Court of Final Appeal Rules Cap.484A for the doing of any acts in relation to the appeal.

Mr Philip Dykes, SC, and Mr Randy Shek, instructed by Bond Ng Solicitors, assigned by the Director of Legal Aid, for the Respondent (D1)/Applicant in FAMC 31/2017

Mr Edwin Choy and Mr Joe Chan, instructed by Ho, Tse, Wai & Partners, assigned by the Director of Legal Aid, for the Respondent (D3)/Applicant in FAMC 32/2017

Mr Robert Pang, SC, Mr Michael Chai and Ms Priscilla Chow, instructed by Ho, Tse, Wai & Partners, assigned by the Director of Legal Aid, for the Respondent (D2)/Applicant in FAMC 33/2017

Mr David Leung, SC, DDPP and Ms Annie Li, PP of the Department of Justice for the Respondent