HKSAR v. Lew Mon Hung

CACC 66/2016

[2018] HKCA 281

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 66 OF 2016

(on appeal from DCCC NO 819 OF 2013)

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Before: Hon Yeung Ag CJHC, Poon and Pang JJA in Court

Dates of Written Submissions: 18, 25 April and 2 May 2018

Date of Judgment: 25 May 2018

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

1.By a judgment handed down on 2 March 2018, we dismissed the applicant’s application for leave to appeal against conviction.  The applicant now applies for a certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance that points of law of great and general importance are involved in our judgment, to enable him to appeal to the Court of Final Appeal.  The respondent opposes the application.

2.By consent, we will dispose of the applicant’s application on paper.  We have duly considered the parties’ written submissions.  We now hand down our judgment.

3.The questions that the applicant asks us to certify are :

“ (1) Given the mandatory duty to investigate alleged or suspected offences under section 12(b) of the Independent Commission Against Corruption Ordinance (Cap. 204) (“the Ordinance”) and the concurrent lack of any statutory discretion as in section 12(a) of the Ordinance :

(i) Does the Commissioner of the Independent Commission Against Corruption (“the Commissioner”) have an operational discretion based on the Common Law which is identical in nature to that possessed by the UK Commissioner of Police; and

(ii) If the answer to (i) is in the affirmative, is the nature of this discretion which is based on the Common Law capable of overriding his mandatory duty to investigate under section 12(b) to the extent of empowering him to stop any ongoing criminal investigation on bona fide grounds?

(2) Reading Article 57 of the Basic Law in conjunction with sections 5, 12, 14-17 of the Ordinance, does the Commissioner’s accountability to the Chief Executive of the Hong Kong Special Administrative Region (“the Chief Executive”) include matters of operational issues concerning criminal investigations of individual cases, and is not merely confined only to matters of the direction and administration of the Independent Commission Against Corruption?

(3) If the answers to Questions 1 and 2 above are all in the affirmative, does the Chief Executive have the same operational discretion which is based on the Common Law as that of the Commissioner which is capable of overriding the Commissioner’s mandatory duty to investigate under section 12(b) of the Ordinance to the extent of empowering the Chief Executive to direct the Commissioner to stop any ongoing criminal investigation on bona fide grounds, or does the Chief Executive have any additional or other legal power to direct the Commissioner to stop any ongoing criminal investigation on bona fide grounds?”

4.In our view, all the three questions are of great and general public importance that ought to be considered by the Court of Final Appeal.  And contrary to the respondent’s stance, we do not consider them to be plainly unarguable.

5.We therefore allow the application and grant the certificate sought.

Mr Joseph Tse, SC, Ms Doris Ho and Mr Byron Tsang, instructed by KCL & Partners, for the Applicant

Miss Anna YK Lai, SC, DDPP and Mr Jonathan Lin, SPP, of Department of Justice, for the Respondent