HKSAR v. Walsh Kent Andrew

HCCC 368/2015

[2018] HKCFI 921

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 368 OF 2015

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APPLICATION FOR CERTIFICATE TO APPLY
TO THE COURT OF FINAL APPEAL

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1.This is an application for a certificate to apply to the Court of Final Appeal on a point of law of great and general importance in a decision of this Court dated 26 March 2018, pursuant to section 32(2) of the Hong Kong Court of Appeal Ordinance, Cap 484. I have decided not to grant the certificate for the following reasons.

2.The point of law on which the applicant seeks the certificate is framed by way of the following question:

“Whether the physical presence of a natural person accused is required at that person’s arraignment where the prosecution intends to offer no evidence against that person?”

3.I have handed down two decision addressing this issue.  The first on 15 December 2017 and the second on 26 March 2018.  After I handed down my ruling on 26 March 2018, I fixed the applicant’s first day of trial for today.  The applicant appeared in person and was formally arraigned whereupon he entered a plea of not guilty, after which the prosecution offered no evidence.  He was formally acquitted of the charge.[1]

4.Mr Gerard McCoy, SC who appears together with Mr Michael Arthur and Ms Nisha Mohamed, for the applicant, acknowledges that the application for the certificate dated 29 March 2018 is now academic.  However, he submits that there is a sufficiently great public interest to be served by the Court of Final Appeal deciding this point of law, even if the point has now become moot. 

5.Mr McCoy relies on various authorities to support his application.  The first is R v Home Secretary, ex parte Salem [1999] 1AC 450.  In that case, the House of Lords held that on an appeal on an issue of public law involving a public authority, it had discretion to hear the appeal even if by the time it was due to begin there was no longer a lis to be determined directly affecting the parties’ rights and obligations inter se, although emphasising that the discretion was to be exercised with caution, and that academic appeals should not be heard unless there was a good reason in the public interest for doing so.[2]

6.A similar decision was given in Secretary for Security v Sakthevel Prabakar (2003) 6 HKCFAR 397.  The Appeal Committee of the Court of Final Appeal held that even in the field of public law, the fact that an appeal would be academic as between the parties was a strong factor against granting leave to appeal, but it was not an absolute bar.  The Committee stated that granting of appeal could be appropriate if there was a sufficiently great public interest to be served by having a question of public law decided by the Court of Final Appeal.[3]

7.The final case on which Mr McCoy relies is a decision of the Supreme Court of New Zealand in R v Gordon – Smith [2009] 1 NZLR 721, where it was held that mootness was not a matter that deprived accorded jurisdiction to hear an appeal, but like the other cases to which I have referred, emphasising that there were important reasons for caution in exercising discretion to hear an appeal when there were no live issues between the parties.  These included the importance of the adversary system, the need for economy and the use of court resources and the proper role of the courts.[4]  The Court analysed these reasons, emphasising that a cautious approach should be taken to leave applications where there are no live issues between the parties.[5]  It would seem to me that given the nature of the application and the issues that have to be considered, that this is an exercise of discretion by the relevant appellate court. 

8.I therefore refused the application, although I note in passing that the applicant may proceed to apply for a certificate and leave to appeal to the Court of Final Appeal pursuant to section 32(3) of the Hong Kong Court of Final Appeal Ordinance.

Mr Neil Mitchell, counsel on fiat, for HKSAR

Mr Gerard McCoy, SC, Mr Michael Arthur and Ms Nisha Mohamed, instructed by Robinsons, Lawyers, for the defendant