HKSAR v. Yu Lik Wai William and Another
Read the full judgment text of CACC 237/2015 on BabelCite. This Court of Appeal judgment was delivered on 16 April 2020 before Poon CJHC, Macrae VP and McWalters JA.
Criminal law – appeal – certification of points of law of great and general importance – section 32(2) Hong Kong Court of Final Appeal Ordinance, Cap 484 – Interception of Communications and Surveillance Ordinance (Cap 589) – section 15 executive authorization – constitutionality – Article 30 of the Basic Law – Article 14 of the Hong Kong Bill of Rights Ordinance (Cap 383) – section 61(4) ICSO – remedial interpretation – disclosure to prosecution – disclosure to judge – fair trial – Article 87 of the Basic Law – Articles 10 and 11(2) of the Hong Kong Bill of Rights Ordinance – whether executive authorization under s.15 ICSO is unconstitutional for not being supported by material on oath and granted by a non-judicial person – whether the Court of Appeal's remedial interpretation of s.61(4) ICSO on 9 October 2019 was a valid exercise of judicial power – whether legislative history of the ICSO Bill precluded that remedial interpretation – whether appellants received a fair trial where s.61(4) information was disclosed to the prosecutor but not to the first applicant – Court of Appeal declines to certify all three points – first question a matter for the Court of Final Appeal to address – second question not reasonably arguable and remedial interpretation exists precisely to mitigate harmful consequences of finding a provision unconstitutional – third question contingent on the second and likewise declined.
Legal issues: Certification of three points of law of great and general importance under s.32(2) CFA Ordinance
Outcome: All three points of law declined certification; the application for certification was refused in its entirety.
Cited by 6 cases · Cites 2 cases
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CACC 237/2015 [2020] HKCA 210 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 237 OF 2015 (ON APPEAL FROM DCCC 325/2014) ________________________ BETWEEN
________________________ Before: Hon Poon CJHC, Macrae VP and McWalters JA in Court Dates of Written Submissions: 13 November and 9 December 2019 Date of Judgment: 16 April 2020 ________________________ J U D G M E N T ________________________ Hon McWalters JA (giving the Judgment of the court): 1.The appellants apply, by way of Notices of Motion dated 17 October 2019 and 6 November 2019, for this court to certify, pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, three points of law which they say are of great and general importance. The three points of law in the two Notices of Motion are the same. They are:
2.In support of certification of the first question the appellants submit that it is “appropriate for the Court of Final Appeal to consider this issue afresh”. 3.In support of certification of the second question the appellants repeat the arguments that they advanced before the court at the hearing on 12 June 2019 and which the court rejected in its judgment of 9 October 2019[1]. 4.In support of certification of the third question the appellants submitted that alternatives of a defendant being made aware of the gist of the section 61(4) information or of being provided with the assistance of a special advocate were better means of ensuring a defendant received a fair trial than the courts remedial reinterpretation of the section 61(4). 5.We decline to certify the first question. The argument that the issue is appropriate for the Court of Final Appeal to consider is an argument that must be addressed to that court. It is not for us to pre-empt the view that the Court of Final Appeal may take to such a submission. 6.We decline to certify the second point as we are not persuaded that it is reasonably arguable. Furthermore, as Ms Lam for the respondent points out, not remedially interpreting section 61(4), and leaving it to be struck down, would have the undesirable effect of “curtailing the protection designed to ensure a defendant receives a fair trial.” The tool of remedial interpretation exists precisely for the purpose of assisting courts to deal with any harmful consequences that may otherwise arise as a result of a decision finding a provision in an enactment of the legislature to be unconstitutional. 7.The third question only arises if we agree to certify the second question which we have declined to do. That being so we decline to certify the third question.
Ms Vinci Lam DDPP and Ms Audrey Parwani SPP of the Department of Justice, for the respondent Mr Andrew Bruce SC and Mr Phillip Ross, instructed by Ho, Tse, Wai & Partners, assigned by DLA, for the 1st appellant Mr Andrew Bruce SC and Mr Phillip Ross, instructed by King & Co, assigned by DLA, for the 2nd appellant |
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