Secretary for Justice v. Lau Kwok Leung

FAMC Nos. 43 to 55 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS. 43 TO 55 OF 2017 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CAAR NO. 3 OF 2016)

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BETWEEN

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DETERMINATION

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The Appeal Committee:

1.On 24 November 2017, on the application of eight of the respective applicants in these matters,[1] Ribeiro PJ granted those applicants bail pending the hearing of their applications for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal[2] reviewing the sentences that had been imposed on them for convictions for unlawful assembly (and certain other offences).[3]

2.When he granted bail as aforesaid, Ribeiro PJ referred to the forthcoming hearing of the substantive appeals in Secretary for Justice v Wong Chi Fung & Others[4] (“the Wong Chi Fung case”) and further directed:

“The Registrar will fix a date for the hearing of the leave applications in the present case shortly after the Court issues its judgment in that appeal.”

3.By summonses dated 5 December 2017, the applicants in FAMC 43 to 47 and 50 to 55 of 2017 have applied for an order that, in spite of that direction given by Ribeiro PJ, the Registrar be directed to fix an early date for the hearing of the applications for leave to appeal to the Court of Final Appeal by the applicants.

4.The applicants’ summonses also then seek orders that, if leave to appeal is granted by the Appeal Committee: (i) the hearing of the substantive appeals to the Court of Final Appeal be consolidated with the appeals in the Wong Chi Fung case; (ii) there be consequential orders for the abridgement of time for the filing of printed cases and records for the appeals; and (iii) the substantive appeals be heard together with the appeals in the Wong Chi Fung case on 16 January 2018, and/or some other date or dates, or one immediately after the other.

5.Although the applicants in FAMC 48 and 49 of 2017 have not issued similar summonses, their solicitors have written to the Registrar of the Court of Final Appeal to indicate that the applicants will abide by the decision to be made in the applications made by the other applicants.[5]

6.By letter dated 8 December 2017, the Registrar notified the parties’ solicitors that the applicants’ summonses would be referred to the Appeal Committee for disposal on the papers and directed the filing of written submissions, which have now been received.

7.The applicants seek the directions set out in their summonses on the basis that there are common issues raised in that three of the four issues to be heard in the Wong Chi Fung case also arise in these cases and also on the basis of the procedural history of the two sets of cases, which is said to be unusual.  The appellants in the Wong Chi Fung case are represented by two of the firms representing applicants in the present cases,[6] and the solicitors in question are satisfied that the directions sought will not adversely affect the interests of the appellants in the Wong Chi Fung case.  Some of the applicants in these cases have been granted legal aid and it is suggested also that there may be some savings in the fees paid to counsel and solicitors due to some of the applicants having common representation with the appellants in the Wong Chi Fung case.

8.In the Wong Chi Fung case, the Court of Final Appeal will hear argument on the following issues of law common to each of the three applicants in that case, namely:

(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?”

The Court will also hear argument in respect of the appellant Wong Chi Fung[7] on a fourth issue, namely:

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

9.In the present cases, as Ribeiro PJ noted in his Ruling on Bail at paragraph [5], the Court of Appeal has certified four questions of law raised by the applicants as involving points of law of great and general importance, reflecting the first two issues to be considered in the Wong Chi Fung case.  The applicants also contend that the fourth question certified by the Court of Appeal corresponds with the third issue to be considered in the Wong Chi Fung case.

10.The applicants accept that the provisions of Rule 8 of the Hong Kong Court of Final Appeal Rules (“the CFA Rules”)[8] do not apply here since the present cases and the Wong Chi Fung case do not “arise out of the same cause or matter” and also because the Wong Chi Fung case has proceeded beyond the leave to appeal stage and will be heard substantively by the Court of Final Appeal. 

11.However, reliance is placed on Rule 78 of the CFA Rules[9] and it is sought to contend, on the basis of that rule, that the procedure in Order 4 rule 9(1)(a) of the Rules of the High Court (“RHC”), which is wider than Rule 8, should apply in the present circumstances.

12.The applicants also referred to the fact that the Court recently consolidated two appeals, namely HKSAR v Salim Majed (FACC 1/2015) and HKSAR v Yeung Ka Sing Carson (FACC 5 & 6/2015), in a situation said to be similar to the present one.  Another example of the Appeal Committee hearing two related leave applications together (and eventually the Court of Final Appeal hearing both substantive appeals together)[10] and an example of the Privy Council consolidating two appeals against sentence, in which leave to appeal was granted separately,[11] were also referred to in support of the applicants’ contentions.

13.In his written submissions on behalf of five of the applicants,[12] Mr Martin Lee SC[13] went so far as to contend that “where a common question of law arises in two different appeals, the practice both in the CFA and in the [Privy Council] is to have both appeals heard together, or one immediately after the other”.

14.We have no doubt that the Court may, as a matter of case management and where the circumstances make it just and convenient to do so, hear two different appeals together or at the same hearing if a common question of law arises in both.  Such power is clearly within the implied jurisdiction of an appellate court to regulate its practice and procedure which is ancillary to its statutory jurisdiction: see HKSAR v Cheng Chee Tock Theodore (2015) 18 HKCFAR 292 at [48].  This renders it unnecessary to consider whether the provisions of Rule 78 of the CFA Rules require the Court to apply the provisions of RHC Order 4 rule 9(1)(a).  As Fok PJ said in HKSAR v Cheng Chee Tock Theodore:

“There may be difficulties in reliance on r.78 since that rule is expressed in general terms relating to the practice and procedure ‘in the Court’ to be determined by the Chief Justice rather than that to be adopted in an individual case by the Court (whether the full Court or the Appeal Committee).”[14]

15.However, despite the existence of the power, there is no universal practice that the Court will exercise it and it will remain to be determined if the circumstances make it just and convenient, as a matter of case management, to direct the two appeals to be heard together or at the same hearing.  Indeed, if the only commonality between two cases is that the same point of law arises in both, there may need to be some other reason to make it just and convenient to do so.

16.So far as the circumstances of the two cases are concerned, the convictions in the Wong Chi Fung case and those in the present cases arise from wholly separate and distinct incidents.  Although the convictions include convictions for the offence of unlawful assembly, those common convictions arose in the present case out of a demonstration in the Legislative Council Complex on 13 June 2014.  The convictions in the Wong Chi Fung case arose out of an incident in the forecourt of the Central Government Offices on 26 September 2014.  Entirely different facts and evidence are relevant to the two separate cases.

17.Nevertheless, it is contended by Mr Lee on behalf of the applicants represented by him that, in relation to their procedural history, the commonality between the present cases and the Wong Chi Fung case is “quite remarkable”.  This submission would appear to be based on the sequence of events being that: the Court of Appeal heard the Wong Chi Fung case on 9 August 2017 and then reserved judgment; the same division of the Court of Appeal[15] then heard the present cases on 15 August 2017 and allowed the Secretary for Justice's application for review of sentences and imposed custodial sentences on each of the applicants, indicating it would provide its reasons later; the Court of Appeal handed down its reserved judgment in the Wong Chi Fung case on 17 August 2017; and, finally, the Court of Appeal handed down its Reasons for Judgment in the present cases on 11 September 2017.  The same Court of Appeal which had heard the present cases on 15 August 2017 must, Mr Lee submits, have had in mind what it was about to say in the reserved judgment in the Wong Chi Fung case and must have applied in these cases the legal propositions and sentencing principles that it was shortly to lay down in its reserved judgment when they were hearing these cases and later when they were preparing their written reasons.  In addition, it is contended, speculatively, that, if the sequence of events before the Court of Appeal had been different, the leave applications in the present case might have been heard more or less at the same time as those in the Wong Chi Fung case so that the two sets of cases would have been heard together.

18.There is no doubt that there is some commonality between the present cases and the Wong Chi Fung case in terms of their procedural history.  However, the degree of similarity between the two sets of cases is neither overwhelming nor particularly weighty.

19.It must not be forgotten that, in the present cases, notwithstanding the grant of a certificate by the Court of Appeal that the appeal involves questions of law of great and general importance, leave to appeal has not yet been granted.  The applications for leave to appeal are opposed by the Secretary for Justice and it still remains to be seen whether the Appeal Committee grants leave to appeal to the full Court on any of the grounds relied upon.

20.In any event, the two sets of cases are not ones which involve common questions which are pure questions of law.  The legal issues arising in the Wong Chi Fung case will require to be answered in the context of the facts of those particular appeals.  This is all the more so since the applicants in the Wong Chi Fung case have been granted leave to appeal on the substantial and grave injustice ground.  The latter ground will require examination of the particular facts and evidence relevant to those three appeals.  In the present cases, in contrast, in addition to the common questions of law, some of the applicants are seeking leave to raise questions of law in addition to those for which leave to appeal has been granted in the Wong Chi Fung case.  Moreover, all the applicants in these cases seek leave to appeal on the substantial and grave injustice ground, which, if granted, will require examination of the particular facts and evidence in their respective cases.

21.However, notwithstanding this, to the extent that there is commonality in the points of law relied upon by the applicants in these cases and by the appellants in the Wong Chi Fung case, we are confident that the overlapping legal representation between the two sets of cases (see paragraph [7] above) is such that there is no material risk that a point will be either taken, or omitted to be taken, in the hearing of the Wong Chi Fung case that would prejudice the applicants in the present cases when their applications for leave to appeal and, if leave is granted, their substantive appeals come to be heard.  This absence of prejudice is instead, therefore, a factor weighing against the orders sought by the applicants: see, in this context, Building Authority v Appeal Tribunal (Buildings) & Real Estate Developers Association of Hong Kong (Intended Intervener) [2013] 3 HKC 79, where the fact that the appellants had legal representation of leading and junior counsel and solicitors was treated as a weighty factor against an order for joinder of the interested party, notwithstanding the existence of a common legal issue in proceedings involving the latter.[16]

22.Of even greater weight and significance in the present cases is that the appeals in the Wong Chi Fung case are in a state of readiness to be heard on 16 January 2018. Part A of the Record has been filed, the appellants have filed their respective written cases in support of the appeal and the respondent is due to file its written case in opposition to the appeal shortly (on 20 December 2017). The present cases have not yet reached the stage of a hearing of the applications for leave to appeal.  Even if these leave applications were to be heard in the immediate future, it is not realistically possible, given the short time that would be available between the hearing of the leave applications and 16 January 2018 for the Record and parties’ written cases to be ready.  This would therefore mean that, if the two cases were to be heard together, the Wong Chi Fung case would have to be adjourned and heard at a later date.  Furthermore, this result would be all the more likely since the participation of additional parties in the appeal hearing fixed for 16 January 2018 and the additional issues that would need to be addressed would almost certainly mean that more than one day would be required for the hearing.  There is no good reason, in our view, to take this unpalatable course of vacating an appeal which is ready to be heard when there is no pressing need for the two cases to be heard together.

23.We would note that the chronology of the cases of HKSAR v Salim Majed and HKSAR v Yeung Ka Sing Carson was significantly different.  Salim Majed raised only one of the four questions of law that were raised in Yeung Ka Sing Carson.  Leave to appeal in Salim Majed had been granted on 10 February 2015 and the hearing of that appeal fixed for 9 June 2015.  When the leave application for Yeung Ka Sing Carson was filed, it was immediately apparent that it covered a broader range of questions of law than did Salim Majed.  Accordingly, the Salim Majed hearing date was vacated pending the hearing of the leave application in Yeung Ka Sing Carson on 14 August 2015.  When leave to appeal was granted in Yeung Ka Sing Carson, both appeals were then fixed to be heard together from 31 May to 2 June 2016.  The other examples of joint hearings of leave applications and/or substantive appeals do not constitute weighty reasons supporting the orders sought by the applicants here.  Each such decision of case management will depend on its own circumstances and there is no suggestion in those cases that there is a rule that, where appeals raise common questions of law, they must be heard together.

24.The impracticality of hearing the two sets of cases together and therefore the practical consequence of having to vacate the hearing date of the Wong Chi Fung case are two factors which have persuaded us that, given the absence of any necessity to hear these cases with the Wong Chi Fung case, we should refuse to make the orders sought in the applicants’ summonses.

25.Accordingly, we dismiss the applicants’ summonses.

Written Submissions by Mr Martin Lee SC and Mr Jeffrey Tam, instructed by Ho Tse Wai & Partners, assigned by the Director of Legal Aid, for the Applicants (D3, D5, D11, D12 & D14) in FAMC 43, 44, 45, 46 & 47/2017

Written Submissions by Mr Philip Dykes SC and Mr Douglas Kwok, instructed by Bond Ng Solicitors, assigned by the Director of Legal Aid, for the Applicants (D1, D4, D10 & D15) in FAMC 50, 52, 54 & 55/2017

Written Submissions by Mr David Leung SC, DDPP and Mr Derek Lau SPP, of the Department of Justice, for the Respondent in FAMC 43-55/2017

Bond Ng Solicitors, for the Applicants (D2 & D6) in FAMC 51 & 53/2017

Sanny Kwong & Co., for the Applicants (D7 & D8) in FAMC 48 & 49/2017