Lam Pui Shan v. HKSAR

FAMC000010/1999

FAMC No. 10 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 10 OF 1999 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 1135 OF 1998)

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Appeal Committee: Chief Justice Li, Mr Justice Ching PJ and Mr Justice Bokhary PJ

Date of Hearing: 4 October 1999

Date of Determination: 4 October 1999

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DETERMINATION

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Mr Justice Bokhary PJ:

1. This applicant was charged with theft. She was convicted in the Magistrate's Court. Her appeal to the High Court was dismissed. And she now seeks leave to appeal to the Court of Final Appeal.

2. Her application for such leave first came on for hearing on 18 May 1999. She was in person then. But we felt that in all the circumstances she ought to have legal representation. The magistrate's notes of proceedings were not before us. But we considered them necessary. So we adjourned. During the adjournment, the magistrate's notes were translated and transcribed. And the Legal Aid Department was informed of our view that the applicant ought to have legal representation.

3. At this resumed hearing, we have had the assistance of submissions by Mr Eric Kwok, instructed by the Legal Aid Department, for the applicant. And we have also had the advantage of consulting the magistrate's notes as translated and transcribed.

4. On 23 March 1998 the applicant was at work in her employer's shop. She sold $232 worth of goods to a customer, and received the price in cash. A video-recording shows her putting the cash in the till. She says that she did so. The video-recording also shows her appearing to enter the sale in the computer. She says that she did that too. The video-recording also shows her discarding the duplicate of the sales invoice. She accepts that she did that, but says that she did it in accordance with a practice which she had been instructed to follow.

5. It was later found that there was no entry in the computer of the sale. The applicant says that this absence could be accounted for by a failure in the electricity supply to the computer.

6. To complete its case that the applicant stole the $232, the prosecution led evidence aimed at establishing that the cash in the till had been $1,000 before the sale and was still only $1,000 rather than $1,232 after the sale.

7. We have considered the fact-finding process by which the magistrate arrived at the conclusion that the cash in the till had been $1,000 both before and after the sale. And we have considered the reasoning by which the judge upheld the result of that fact-finding process. Having considered those matters, we see this case as being in the rare and exceptional category of cases identified by the Appeal Committee in Kwok Hung Fung v. HKSAR (1997-98) 1 HKCFAR 79. In the words which we used in that application (at pp 82J-83A), the present case is one of "those rare and exceptional cases in which there is a real danger of something so seriously wrong that justice demands an inquiry by way of a final appeal despite the absence of any real controversy on any point of law of great and general importance".

8. As the Appeal Committee said in Zeng Liang Xin v. HKSAR (1997-98) 1 HKCFAR 12 at p.22J the "substantial and grave injustice" limb of s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, "imposes a high hurdle". The applicant has surmounted that hurdle. Accordingly we grant her leave to appeal to the Court of Final Appeal under that limb. Her appeal may or may not succeed, but it deserves to be heard.

9. There is no need to mention the other points on which the applicant sought leave. Suffice it to say that this determination does not place any limit on what points the applicant may advance before the Court in due course.

Representation:

Mr Eric Kwok (instructed by the Legal Aid Department) for the applicant

Mr John Reading SC and Mr Paul Ho (of the Department of Justice) for the respondent