HKSAR v. Leung Chun Kit Brandon

FAMC No.19 of 2017

[2018] HKCFA 6

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO.19 OF 2017 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA NO.49 OF 2016)

_______________________

BETWEEN

______________________

Appeal Committee : Mr Justice Ribeiro PJ, Mr Justice Tang PJ and Mr Justice Fok PJ

Date of Hearing and Determination : 5 February 2018

______________________

DETERMINATION

______________________

Mr Justice Ribeiro PJ:

1.We grant leave in respect of the following questions of law certified by the Judge (with errors corrected), namely:

“In the trial of a criminal case in the magistracy, where an unrepresented defendant, apart from giving evidence himself, has not called any witnesses (hereinafter referred to as “the specific circumstances”):

(A) Does the prosecution have the right to make a closing speech under Section 19(2) of the Magistrates Ordinance (Cap.227).

(B) Is R v Au Yeung Tat-Shing and another ([1988] 1 HKLR 1) a correct interpretation of Section 19(2) of the Magistrates Ordinance (Cap.227)?

(C) If the answers to both (A) and (B) are ‘Yes’, then is the unrepresented defendant’s constitutional right to have a just and fair trial infringed by the prosecution’s right under Section 19(2) of the Magistrates Ordinance to make a closing speech in the specific circumstances”?

(D) If the answer to (C) is ‘Yes’, is such infringement justified?”

2.We refuse leave under the “substantial and grave injustice” ground.

3.The appeal will be heard on 11 June 2018.

Mr Peter Duncan SC and Mr Tien Kei-Rui, instructed by John C H Suen & Co., assigned by the Director of Legal Aid, for the Applicant

Ms Vinci Lam, SADPP, and Mr Ivan Cheung, SPP (Ag.), of the Department of Justice, for the Respondent