Tsang Wai Ping v. HKSAR

FAMC No. 28 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 28 OF 2004 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCCC NO. 233 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: 5 November 2004

Date of Determination: 5 November 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 our view, it is reasonably arguable that the refusal to award the applicant costs constituted a substantial and grave injustice on two grounds.  The first arguable ground is the directions as to flight are not to be seen as merely technical.  And the second arguable ground is that, even if those directions were merely technical, it cannot be said that it is more probable than not that the jury acquitted because of them.  Indeed that trial judge did not say that it is more probable than not that the jury acquitted because of the flight directions.  What he said was that “the accused had the benefit of a technical ruling which, to a large extent, may have occasioned his acquittal”. 

2.Accordingly we grant the applicant leave to appeal on the substantial and grave injustice ground.  Although leave is granted on that ground, the appeal may well provide an occasion for a discussion of the relevant legal principles.  Counsel will no doubt prepare themselves to assist the Court on those principles.

[Following discussion with counsel,
the Appeal Committee announced that the appeal
will be heard on Tuesday, 1 March 2005.]

Mr Niall Stirling (instructed by Messrs Rita Law & Co.) for the applicant

Ms Mary Sin & Mr Jackson Poon (of the Department of Justice) for the respondent