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HKSAR v. Milne John

Read the full judgment text of FAMC 7/2022 on BabelCite. This FAMC judgment.

1. We grant the applicant leave to appeal to the Court of Final Appeal against the Decision of the judge below granting a permanent stay of the proceedings against the respondent, on the basis that it is reasonably arguable that, in doing so, the learned judge misapplied the established principles for determining a stay application thereby giving rise to substantial and grave injustice.

Case No.FAMC 7/2022[2022] HKCFA 10
Court
FAMC
Date—
Judge—
Case Document
100%Judiciary

FAMC No. 7 of 2022

[2022] HKCFA 10

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 7 OF 2022 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCCC NO. 240 OF 2020)

___________________________

BETWEEN    
HKSAR Applicant
and
MILNE JOHN Respondent

___________________________

Appeal Committee: Chief Justice Cheung, Mr Justice Fok PJ and Mr Justice Lam PJ

Date of Hearing and Determination: 31 May 2022

____________________

DETERMINATION

____________________

The Appeal Committee:

1.We grant the applicant leave to appeal to the Court of Final Appeal against the Decision of the judge below granting a permanent stay of the proceedings against the respondent, on the basis that it is reasonably arguable that, in doing so, the learned judge misapplied the established principles for determining a stay application thereby giving rise to substantial and grave injustice.

2.Further, we grant leave to appeal on the following question of law of great and general importance that is involved in the appeal, namely:

“When a judge of the Court of First Instance grants a final stay of criminal proceedings against a foreign defendant with little connection to Hong Kong but the prosecution wishes to appeal against that stay to the Court of Final Appeal, when considering the question of bail terms, should the judge ever impose or vary bail conditions in such a way that might render the intended appeal nugatory, in the sense that, if the stay were set aside, the prosecution could not proceed due to the absence of the defendant from the jurisdiction?”

3.The appeal will be fixed to be heard on 26 October 2022.

(Andrew Cheung)  (Joseph Fok)  (M H Lam)
Chief Justice Permanent Judge Permanent Judge

Mr Derek Lau SADPP (Ag) and Mr Gary Leung SPP, of the Department of Justice, for the Applicant

Mr Richard Donald, instructed by Morley Chow Seto, assigned by the Director of Legal Aid, and Ms Nisha Mohamed, instructed by Morley Chow Seto, on a pro bono basis, for the Respondent