Lam Hei Kit v. HKSAR

FAMC No. 27 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 27 OF 2004 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 84 OF 2003)

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Between:

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

Date of Hearing: 27 September 2004

Date of Determination: 27 September 2004

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1.In this application for leave to appeal to the Court of Final Appeal, two questions have been put forward as questions of great and general importance.  One is whether a charge of dealing with property known or believed to represent the proceeds of an indictable offence, contrary to s.25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455, is a nullity if the underlying offence is not specified.  In our view it is not reasonably arguable that such a charge is a nullity. 

2.The second question put forward as one of great and general importance involves whether it can be laid down as a matter of law that there are certain errors in respect of which the proviso cannot be applied.  In our view it is not reasonably arguable that the proviso lends itself to such an exercise. 

3.This brings us to the third basis on which leave to appeal to the Court of Final Appeal is sought, which is whether the application of the proviso by the Court of Appeal in the present case constitutes a substantial and grave injustice in all the circumstances.  Now, whether or not to apply the proviso is essentially a matter for the intermediate appellate court.  Nevertheless if it is reasonably arguable that the application of the proviso by the intermediate appellate court involved a departure from accepted norms to the applicant’s disadvantage, then there would be a basis for granting leave to appeal to the Court of Final Appeal.  We have carefully considered Mr Grossman’s able argument to the effect that the Court of Appeal departed from accepted norms in applying the proviso in the present case.  Having done so, we do not regard it as reasonably arguable that the Court of Appeal has indeed done that. 

4.With an expression of our indebtedness to counsel on both sides for their assistance, we refuse leave to appeal. 

Mr Clive Grossman SC and Mr Osmond Lam (instructed by Messrs Louis K.Y. Pau & Co.) for the applicant

Mr Robert S.K. Lee and Ms Catherine Fung (of the Department of Justice) for the respondent