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FAMC No. 50 of 2018
[2018] HKCFA 48
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 50 OF 2018 (CRIMINAL)
(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 66 OF 2016)
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BETWEEN
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HKSAR |
Respondent |
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and |
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LEW MON HUNG (劉夢熊) |
Applicant |
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| Appeal Committee: Mr Justice Ribeiro PJ, Mr Justice Fok PJ and
Mr Justice Cheung PJ |
| Date of Hearing and Determination: 2 November 2018 |
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D E T E R M I N A T I O N
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Mr Justice Ribeiro PJ:
1.We are satisfied that the following question, of the requisite importance, is involved in the decision of this case and grant leave to appeal in respect thereof, namely:
(Question 1) “Where an accused seeks to cause a person to stop or otherwise interfere with a criminal investigation, is it incumbent on the prosecution, on a charge of attempting to pervert the course of justice, to establish that the person approached by the accused could, by the lawful exercise of a legal power he possesses, stop or interfere with the criminal investigation in order to prove that the accused’s act had a tendency to pervert the course of justice?”
2.We also grant leave to appeal in respect of the three questions certified by the Court of Appeal which arise if, but only if, the aforesaid question is answered affirmatively. The certified questions are as follows:
(Question 2) “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?”
(Question 3) “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?”
(Question 4) “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?’
3.We do not consider the matters raised under the substantial and grave injustice ground to be reasonably arguable and refuse leave in respect thereof.
4.The appeal will be heard on 9 May 2019.
(R A V Ribeiro)
Permanent Judge |
(Joseph Fok)
Permanent Judge |
(Andrew Cheung)
Permanent Judge |
Mr Joseph Tse, SC, Ms Doris Ho and Mr Byron Tsang, instructed by Ledwin Au & Co, for the Applicant
Ms Anna YK Lai, SC, DDPP and Mr Jonathan Lin, SPP, of Department of Justice, for the Respondent
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