HKSAR v. Mui Po Chu

FAMC000002/1997

FAMC No. 2 of 1997

IN THE COURT OF FINAL APPEAL

HONG KONG

Application for Leave to Appeal

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Between:

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Coram: Chief Justice Li, Mr Justice Litton, PJ and Mr Justice Ching PJ

Date of hearing: 11 September 1997

Date of decision: 11 September 1997

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DETERMINATION

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Chief Justice Li :

1. This is the determination of the Appeal Committee upon an application for leave to appeal brought under section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.

2. The background is as follows. On 11 April 1997 the applicant was convicted in the Western Magistracy of common assault and was fined $500. The applicant appealed against that conviction to the High Court but her appeal was dismissed on 18 June 1997. The applicant then in effect applied on 3 July 1997 to the High Court (now renamed the Court of First Instance of the High Court) for a certificate that there was "a point of law of great and general importance " involved in the decision and she added that it was shown that substantial and grave injustice had been done. Her application was refused on 23 July 1997. The matter accordingly comes to us for determination under section 32(2).

3. The case at trial turned on the evidence and the magistrate found that the applicant had committed the assault. In our judgment, no point of law of great and general importance is involved and it has not been shown that substantial and grave injustice has been done.

4. We felt it unnecessary to call on Mr Grenville Cross, SC for the respondent. But his written submissions lodged before the hearing put forward the contention that, as a matter of construction of section 32(2), the certification in that provision applies only to the situation where it is maintained that "a point of law of great and general importance" is involved. He submits that if the basis for the application is that "substantial and grave injustice has been done", then no question of certification by the lower court arises and the application for leave to appeal must be addressed to the Court of Final Appeal itself. This argument appears to be sound. But it would not be appropriate for us to reach a conclusion in this case as in the absence of any legal representation for the applicant, we do not have the benefit of full argument. For the same reasons, we do not think it appropriate in this case to give guidance on criteria for considering applications for leave on either of the bases in section 32(2) which Mr Cross also invited us to do in his written submissions, citing a number of authorities.

5. The application for leave to appeal is totally devoid of merit and is accordingly dismissed.

Representation:

Applicant in person

Mr Grenville Cross SC & Mr Cheung Wai-sun (of the Department of Justice) for the respondent