HKSAR v. Woo Wing See, Phyllis

HCMA 350/2024

[2025] HKCFI 4899

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 350 OF 2024

(ON APPEAL FROM WKCC 4600 OF 2023)

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D E C I S I O N

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1.The applicant WOO Wing See, Phyllis was charged jointly with CHOW Ka Sing for the offence of carrying unauthorized article (i.e. a letter addressed to the Ombudsman) out of a prison, contrary to section 18(1) of the Prisons Ordinance, Cap 234.

2.The applicant appealed against her conviction and I dismissed the appeal on 12 May 2025.[1]

3.By a Notice of Motion dated 6 June 2025, which was amended on 19 June 2025, the applicant applies under section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap 484 for a certificate to certify that a point of law of great and general importance was involved in my decision.

4.The alleged point of law is so-framed:

“Upon a contextual and purposive construction of the Prisons Ordinance (Cap234) (“PO”) and the Prison Rules (Cap 234A) (“PR”), is a letter from a prisoner to the Ombudsman appointed under section 3 of the Ombudsman Ordinance (Cap 397) (a specified person under rule 1A of the PR) an article authorized by the PR to be carried out of a prison for the purpose of section 18(1) of the PO?”

5.It is not in dispute that the applicable test for the present application is as follows:

(1)  Whether the application raises a point of law of great and general importance; and

(2)  Whether the point of law is reasonably arguable.

6.Both parties have made detailed written submission with authorities. Having considered the arguments of the applicant and the respondent, and without taking into account the subsequent amendment to the PR, I am satisfied that this Court’s decision does not involve a point of great and general importance. I do not agree this court’s interpretation carries the consequence of criminal sanction for legal representatives of prisoners for bringing documents into and carrying them out of prisons, as submitted by the applicant.

7.I am also of the view that the point of law so framed is not reasonably arguable. There is no question of any article already authorized by the PR requiring any additional authorization by the Commissioner, thereby reading the word “or” under section 18(1) of PO as conjunctive.

8.I therefore refuse the application.

Miss Chan Wing-sum, Crystal, Senior Public Prosecutor of Department of Justice and Mr Cheng Hoi-fai, Herbert, Acting Senior Public Prosecutor of Department of Justice, for Respondent

Mr Kwan, Steven M.W., Ms Leung, Lai Kwok Yvonne and Ms Wong, Larissa L.H., Counsel instructed by Messrs. C&Y Lawyers, for the 2^nd Appellant