HKSAR v. Lui Sai Yu (呂世瑜)

FAMC No. 7 of 2023

[2023] HKCFA 10

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 7 OF 2023 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 61 OF 2022)

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DETERMINATION

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The Appeal Committee:

1.We grant leave to appeal on the two questions of law certified by the Court of Appeal, namely:

(1)  What is the proper construction of the sentencing provision in NSL 21[1] for offences of a serious nature, namely, “if the circumstances of the offence committed by a person are of a serious nature, the person shall be sentenced to fixed term imprisonment of not less than five years but not more than ten years” and, in particular, whether the stipulation of “not less than five years’ fixed term imprisonment” is mandatory?

(2)  What is the proper construction of NSL 33(1)[2] in sentencing offences to which the provision applies and, in particular, whether the three conditions specified therein are exhaustive in that if none of them is established, the penalty for an NSL 21 offence which is of a serious nature cannot be reduced to less than five years’ fixed term imprisonment; or whether it is permissible to so reduce the sentence for such an offence on account of other mitigating factors?

2.We decline to grant leave to appeal on the additional basis that substantial and grave injustice has been done in that the Court of Appeal’s approach in interpreting NSL 21 and NSL 33(1) constitutes a serious departure from accepted norms and the legislative intent of the NSL to the applicant’s disadvantage, since this contention does not raise any ground of appeal independent of the questions of law for which leave to appeal is hereby granted.

3.The appeal will be listed to be heard on 9 August 2023.

Mr Robert Pang SC, Mr Joe Chan, Ms Yvonne Leung, Mr Jonathan Ip and Mr Jay Koon, instructed by O Tse & Co., for the Applicant

Mr Anthony Chau DDPP and Mr Ivan Cheung ADPP (Ag), of the Department of Justice, for the Respondent