HKSAR v. Lo Man Kam

CACC000212A/2001

CACC 212/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 212 OF 2001

(ON APPEAL FROM DCCC 103 OF 2001)

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Coram: Hon Stuart-Moore VP, Stock and Yeung JJA

Date of Hearing: 14 January 2003

Date of Judgment: 14 January 2003

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1.Mr Jenkyn-Jones has sought "leave to appeal" to the Court of Final Appeal, and an extension of time in which to make the application, by way of a Notice of Motion dated 28 November 2002. This comes over six months after we handed down our Reasons for Judgment.

2.Firstly, we cannot give leave to appeal under the terms of section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484. In appropriate circumstances, we can grant a certificate but we are satisfied that these do not arise. It is our view that no point of great and general importance was involved in our decision.

3.Secondly, we observe that Mr Jenkyn-Jones originally appeared in these proceedings. We have previously had occasion to remind practitioners that the Practice Direction for criminal appeals to the Court of Final Appeal issued by the Chief Justice makes it abundantly plain, and for good reasons (see: HKSAR v Choi Wing-man [1999] 2 HKC 382), that applications to the Court of Appeal for a certificate that their decision involved a point of law of great and general importance should be made, to quote the words of the Direction:

"immediately after the judgment is given from which the appeal is to be brought."

4.In the light of the Practice Direction for criminal appeals in the Court of Appeal, where a reserved judgment or, as in these proceedings, the reasons for a judgment are "handed down" in the absence of an applicant's legal representatives:

".... any application for a certificate to the Court of Appeal that the decision involves a point of law of great and general importance should be made within 7 days of the handing down of the judgment from which the appeal is to be brought."

5.We would not in any event have entertained this application on the ground that the delay to which this application has been subjected is inexcusable.

6.There is a further reason why we decline to issue a certificate that a point of great and general public importance was involved in our decision. This is that no question in the written application has been formulated for our consideration. It almost defies belief that counsel, let alone experienced counsel, should come to the Court of Appeal on an application of this kind without specifying the questions on which he is seeking a certificate.

7.For the reasons we have given, we decline to certify.

Representation:

Mr P.S. Chapman, SADPP, of the Department of Justice, for the Respondent.

Mr Toby R.W. Jenkyn-Jones and Mr Nicholas Y.K. Lau, instructed by Messrs Fung, Wong, Ng & Lam, for the Applicant.