HKSAR v. Lau Ming Chu
Read the full judgment text of CACC 225/2004 on BabelCite. This Court of Appeal judgment was delivered on 19 January 2005 before Cheung JA, Yeung JA, Reyes J.
Criminal law – appeal – certificate on points of law – Court of Final Appeal – presumption of resulting trust – use in criminal proceedings – application by motion – great and general importance – whether proposed points arise from the case – prior appellate judgment confirming findings based on evidence rather than presumption – application dismissed as misconceived. The applicant, who had been convicted in the District Court (DCCC 175/2004), appealed to the Court of Appeal (CACC 225/2004), which delivered judgment on 27 September 2004. By motion dated 18 October 2004, the applicant sought a certificate on points of law for consideration by the Court of Final Appeal. The proposed points asked whether a criminal trial judge can rely on the presumption of resulting trust, a presumption of fact developed in civil proceedings, as a basis for finding an essential fact to establish guilt; what criteria govern reliance, use, and application of the presumption in a criminal trial; and whether a conviction is per se unsafe and unsatisfactory if the trial judge wrongly relied on the presumption. The Court of Appeal held that the application was misconceived because the points of law did not arise in the case. The appellate court had already pointed out that the trial judge's finding that the applicant and her husband had a financial interest in the property and that the applicant had knowledge about it was based on evidence, not on presumptions. The argument that the Court of Appeal had not found the trial judge had not relied on the presumption was therefore not available to the applicant. The application for a certificate on points of law was dismissed.
Legal issues: Whether to grant a certificate on points of law for consideration by the Court of Final Appeal
Outcome: Application for a certificate on points of law dismissed.
Cited by 5 cases
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CACC 225/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. CACC 225 OF 2004 (On Appeal From District Court Criminal Case No. 175 of 2004) ______________________ BETWEEN
______________________ Before : Hon Cheung JA, Hon Yeung JA and Hon Reyes J in Court Date of Hearing : 19 January 2005 Date of Judgment : 19 January 2005 ______________________ J U D G M E N T ______________________ Hon Cheung JA (giving judgment of the court) : 1.The applicant by motion dated 18 October 2004 applied for a certificate on points of law for consideration by the Court of Final Appeal. The following points of law of great and general importance are said to be involved in our judgment delivered on 27 September 2004 :
2.In our view this application is misconceived. The points of law simply do not arise in the present case. We have already pointed out in our judgment that the finding by the judge that the applicant and her husband had a financial interest in the property and the applicant’s knowledge about this matter was based on evidence and not on presumptions. To say that this court did not find that the judge had not relied on or taken into account the presumption of resulting trust is an argument that is simply not available to the applicant in the light of our judgment. 3.The application is dismissed.
Mr. William Tam, SGC of Department of Justice for the Respondent Mr. Lawrence Hui, instructed by Messrs Hagon Wai & Partners for the Applicant |
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Further hearings and rulings under CACC 225/2004