HKSAR v. Li Li Mua

FAMC000013/2000

Not for circulation
FAMC No. 13 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 13 OF 2000 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 290 OF 2000 )

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

Date of Hearing: 8 September 2000

Date of Determination: 8 September 2000

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DETERMINATION

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Mr Justice Bokhary PJ:

1. This is an application by the prosecution for leave to appeal to the Court of Final Appeal. The intermediate appellate court has certified the involvement of a point of law of great and general importance. In the certificate granted by that court, the point is worded thus:

"Whether a prosecution for an offence under Section 41 of the Immigration Ordinance, Chapter 115 is time barred by virtue of Section 46 of that Ordinance if the prosecution is initiated 3 years after the first date of the commission of an offence under Section 41 when the commission of that offence continues until and includes the date when proceedings are initiated (it being common ground that an offence under Section 41 is capable of being a continuing offence)."

2. The principal question for this Committee is whether the point is at least reasonably arguable. In exploring that question, members of this Committee have queried the clarity of the intermediate court's formulation of the point. As a result, counsel for the applicant has conceded and suggested that the point would emerge with greater clarity if it were worded thus instead:

"Is a prosecution for an offence under Section 41 of the Immigration Ordinance, Chapter 115 time barred by virtue of Section 46 of that Ordinance if the prosecution is initiated 3 years after the first date when the commission of an offence under Section 41 became known to the prosecuting authority when the commission of that offence continued until and up to the date when proceedings were initiated (it being common ground that an offence under Section 41 is capable of being a continuing offence)?"

3. As it seems to us, such re-formulation does not alter the substance of the point but merely identifies it with greater clarity. We regard the point as at least reasonably arguable. Accordingly we grant leave to appeal.

[No order as to costs.]

Representation:

Mr D.G. Saw SC and Mr Cheung Wai-sun (of the Department of Justice) for the applicant

Respondent in person