HKSAR v. Lee Ming Tee

FAMC000001/2003

FAMC No. 1 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1 OF 2003 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCCC NO. 191 OF 1999)

_____________________

_____________________

Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 11 February 2003

Date of Determination: 11 February 2003

__________________________

DETERMINATION

__________________________

Mr Justice Bokhary PJ:

1.We grant the prosecution leave to appeal. This we do on both the "point of law" limb and the "substantial and grave injustice" limb.

2.As to the "point of law" limb, we regard the points raised in paras 15 to 22 of the prosecution's amended Application for Leave to Appeal as points of law of great and general importance which are involved in this case and are susceptible of substantial argument on both sides of the question. We certify them, and grant leave to pursue them.

3.As to the "substantial and grave injustice" limb, we think that it is reasonably arguable that the granting of a permanent stay in this case involved a departure from accepted norms so serious as to justify permitting the prosecution to question it before the Court of Final Appeal. It is to be observed that in a situation like this one, an appeal to the Court of Final Appeal would be the only appeal rather than, as is normally the case, a second appeal.

4.It is appropriate -- and this is a matter which the respondent was content to leave to us without submission -- that the Securities and Futures Commission, to which we will refer as "the SFC", be granted leave to intervene in the appeal. We direct that it may do so.

5.As an intervener, the SFC may present oral arguments to the Court of Final Appeal. And these arguments should be foreshadowed in a printed case filed by the SFC. As an intervener, the SFC need not file a notice of appeal. But, like the prosecution, the SFC should file and serve its printed case within the time fixed by rule 25 of the Hong Kong Court of Final Appeal Rules, that is to say within 35 days after the day of the filing of the prosecution's notice of appeal, which notice of appeal will, as rule 14(2) provides, have been filed within 7 days after the grant of leave today.

6.Rule 26 provides that the respondent's printed case shall be filed and served within 28 days after the day of the receipt by him of the prosecution's printed case. In fairness to him, we direct that he shall file and serve his printed case within 28 days after the receipt by him of the prosecution's printed case or the SFC's printed case, whichever is the later.

7.The question of the SFC's liability for, or entitlement to, costs must be left to the Court of Final Appeal itself.

Representation:

Mr Michael Thomas SC and Mr R. Beresford (instructed by the Department of Justice) and Mr G.D. Goodman (of that department) for the applicant

Mr Jonathan Caplan QC and Mr A.S. King (instructed by Messrs Haldanes) for the respondent

Mr John Griffiths SC and Mr A. Bell (instructed by Securities and Futures Commission) for the intervener