HKSAR v. Shum Wai Kee

FAMC No. 38 of 2017

[2018] HKCFA 36

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 38 OF 2017 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 113 OF 2016)

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

Date of Hearing and Determination: 8 August 2018

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DETERMINATION

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Mr Justice Fok PJ:

1.We grant leave to appeal in respect of the following question of law of great and general importance, namely:

“In the light of the rule that ignorance of the law is generally no defence, what, on its true construction, is the mental element of the offence under section 37(a) of the Crimes Ordinance (Cap.200)?”

2.We also grant leave on the basis that it is reasonably arguable that, by reason of the courts below having materially misapprehended the evidence, substantial and grave injustice was done to the applicant.

3.Leave to appeal on the grounds set out in the applicant’s Notice of Motion for Leave to Appeal is otherwise refused.  We are not satisfied the questions of law identified in the Notice of Motion are reasonably arguable and we also consider that the other grounds there advanced in support of the application under the substantial and grave injustice limb lack sufficient merit.

4.The appeal will be heard on 10 January 2019.

Mr Joseph Lee, instructed by Wat & Co., assigned by the Director of Legal Aid, for the Applicant

Mr Ned Lai SADPP and Mr Nicholas Wong SPP, of the Department of Justice, for the Respondent