The Secretary for Justice v. Tam Kit-i

FAMC No. 13 of 2022 and
FAMV No. 367 of 2022

[2022] HKCFA 19

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 13 OF 2022 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 103 OF 2022)

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AND

MISCELLANEOUS PROCEEDINGS NO. 367 OF 2022 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 103 OF 2022)

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(HEARD TOGETHER)

Appeal Committee: Mr Justice Ribeiro PJ, Mr Justice Lam PJ and Mr Justice Tang NPJ

Date of Hearing and Determination: 16 September 2022

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DETERMINATION

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The Appeal Committee:

1.We grant leave to appeal in respect of the following questions which are of the requisite importance, namely:

(a)  “What on the true construction of the provisions of the Organized and Serious Crimes Ordinance (Cap 455) (“OSCO”) referred to herein, was the consequence of the Judge’s decision in HCMP 1207/2014 (dated 10 August 2016) not to make a confiscation order on the basis of her conclusion that the respondent had not ‘absconded’ within the meaning of section 8(1)(a)(ii)(B)?  In particular, did this in law result in the application for a confiscation order being ‘concluded’ within the meaning of section 2(16A)(a) with the consequence that the restraint order dated 30 March 2011 was discharged by operation of section 15(5)(b)?”

(b)  “Where a person against whom proceedings under OSCO have been instituted seeks to bring an appeal against a Judge’s refusal to discharge a restraint order, is that appeal criminal or civil in nature for jurisdictional and procedural purposes?

2.We direct that the stay of execution of the Court of Appeal’s judgment be continued pending determination of the appeal.

3.The appeal will be listed for hearing on 28 February 2023.

Mr William Tam SC, DDPP, Ms Denise Chan, SADPP and Mr Douglas Lau, PP, of the Department of Justice, for the Applicant

Mr Nigel Kat SC and Mr Benson Tsoi, instructed by H M Tsang & Co, for the Respondent