HKSAR v. Chan Shui Lun

FAMC No. 21 of 2018

[2018] HKCFA 47

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 21 OF 2018 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 76 OF 2017)

_______________________

BETWEEN

_______________________

_______________________________________

REASONS FOR DETERMINATION

_______________________________________

Mr Justice Fok PJ:

1.At the hearing of this application for leave to appeal, we made the orders set out in paragraph [7] below and indicated we would hand down our reasons for doing so in due course, which we now do.

2.This leave application arose from a prosecution of the applicant for the offence of careless driving, contrary to section 38(1) of the Road Traffic Ordinance (Cap.374), arising out of a collision between his car and a taxi on Chek Lap Kok South Road on Lantau Island on 3 August 2016.  On 17 January 2017, the applicant was convicted of the offence by the magistrate, Mr Raymond Wong Kwok-fai,[1] and fined HK$3,000.

3.The applicant appealed against his conviction and his magistracy appeal was heard in the Court of First Instance before Deputy High Court Judge Stanley Chan,[2] who dismissed his appeal on 11 October 2017.  The Deputy Judge concluded his judgment with a section headed “Costs” in which he ruled that the applicant’s appeal was without merit.  He assessed costs summarily and ordered the applicant to pay to the respondent the sum of HK$2,000 by way of costs.[3]

4.On 10 April 2018, the applicant filed an application out of time for leave to appeal to the Court of Final Appeal against the Deputy Judge’s judgment dismissing his magistracy appeal and upholding his conviction, as well as the order for costs against him.  The application for leave to appeal is made on the ground that substantial and grave injustice has been done to the applicant.

5.Following the filing of written submissions on behalf of the applicant in response to the Rule 7(1) summons, and in the absence of any indication as to the respondent’s position, the application was listed for an oral hearing.  Thereafter, the respondent filed written submissions indicating that in one respect it was prepared to concede to an order granting leave to appeal with a view to conceding the substantive appeal.  The respondent’s concession was that the order for costs was wrongly made and that the proposed appeal against the costs order should be allowed, the costs order set aside and the paid assessed costs of HK$2,000 returned to the applicant.

6.Save for that one proposed ground of appeal, the Appeal Committee is satisfied that the alleged errors relied upon by the applicant in support of his contentions (that the verdict against him was demonstrably perverse and that the Deputy Judge failed to give adequate reasons for his decision) provide no basis for the grant of leave to appeal to the full Court.  The grounds relied upon in support of the proposed appeal against conviction are not reasonably arguable and, save for the proposed appeal against the Deputy Judge’s costs order, we are therefore satisfied this application must be dismissed.

7.Accordingly, we make the following orders:

(1)   By consent, the Appeal Committee:

(a)   grants leave to appeal to the applicant on the papers against the costs order made by the Deputy Judge in HCMA 76/2017 on the ground that it is reasonably arguable that substantial and grave injustice has been done on the basis that the costs order was made contrary to the principles laid down in HKSAR v Chui Shu Shing (2017) 20 HKCFAR 333;

(b)   directs the parties to file a Joint Case in respect of the appeal within 35 days; and

(c)   orders that the costs of the leave application be in the cause.

(2)   In respect of the remaining grounds of appeal, we dismiss the application for leave to appeal.

8.We would remind the parties to attempt to agree in the Joint Case any ancillary orders and costs consequent on the appeal being allowed and to include such agreement, or state their respective positions on those matters, in that Joint Case.[4] Upon receipt of the Joint Case, the Court will proceed to dispose of the appeal in accordance with the procedure laid down in HKSAR v Shum Wan Foon (2014) 17 HKCFAR 303 in relation to uncontested appeals, i.e. on the papers and without an oral hearing.

9.As explained above, after the filing of the application for leave to appeal, the Registrar issued a summons to the applicant pursuant to Rule 7(1) of the Hong Kong Court of Final Appeal Rules (Cap.484A)[5] to show cause why this application for leave to appeal should not be dismissed.  The Appeal Committee directed an oral hearing of the application in view of the merits of the intended appeal against the costs order made by the Deputy Judge.  However, the applicant’s submissions dated 17 May 2018 filed in response to the summons to show cause did not disclose any reasonably arguable ground of appeal against the applicant’s conviction.

10.In future, similar cases where only part of an application for leave to appeal is considered to be of sufficient merit to justify an oral hearing of the leave application, but where the balance of the application is not reasonably arguable, will be dealt with in accordance with the procedure that was adopted in HKSAR v Law Yat Ting (2015) 18 HKCFAR 400 at [8] to [10].[6] That is to say, the Appeal Committee will, pursuant to Rule 7(2),[7] proceed to:

(1)   Dismiss the leave application on the papers so far as it relates to any ground of appeal which is considered not to be reasonably arguable; and

(2)   Either direct a hearing of the leave application in relation to any additional ground where the applicant has shown cause why the application should not be dismissed under Rule 7 or consider making an order by consent granting leave to appeal on that ground if the respondent has indicated it consents to such an order.

11.If the respondent indicates that it is conceding the application for leave to appeal with a view to conceding the subsequent substantive appeal, the Appeal Committee will, as appropriate, also consider making directions at the same time for the disposal of the appeal on the papers in accordance with the procedure in HKSAR v Shum Wan Foon (supra.) in relation to uncontested appeals.

Mr Caesar Lo, instructed by Cheung, Chan & Chung, assigned by the Director of Legal Aid, for the Applicant

Ms Vinci Lam, SADPP and Ms Human Lam, PP, of the Department of Justice, for the Respondent