HKSAR v. Zhang Wenjing

HCMA1060/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1060 OF 2004

(ON APPEAL FROM KTCC 6435 OF 2004)

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BETWEEN

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Before : Hon Gall J in Court

Date of Hearing : 10 March 2005

Date of Judgment : 10 March 2005

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J U D G M E N T

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1.The appellant was found guilty by a magistrate of one charge of breach of condition of stay and was on the same day sentenced to 13 weeks’ imprisonment.  She appealed that decision in respect of her conviction and the appeal against conviction was dismissed.

2.The point of argument in the appeal was whether her admission that she was looking after the shop for her husband who had gone to the Mainland and evidence of her being seen on one occasion to accept payment for services provided in the shop was sufficient to amount at law to joining in the business.

3.Mr Percy, for the appellant, seeks leave to appeal, pursuant to section 32 of the Hong Kong Court of Final Appeal Ordinance, to the Court of Final Appeal on a point of law.  Section 32 provides :

“	(1)	No appeal shall be admitted unless leave to appeal has been granted by the Court.
	(2)	Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done.”

4.Mr Percy seeks to argue that a point of law “whether someone who admits to coming here to look after the shop for her husband and receives one payment from a client is sufficient to find that she has joined in the business” is of sufficiently great and general importance to warrant that I certify that fact to the Court of Final Appeal.  He does not seek to argue on the limb of substantial and grave injustice having been done. 

5.I am unable to accede to Mr Percy’s application.  The point which he raises is one of mixed law and fact.  It is of some but not general importance and could not in overall terms to be said to be of great importance.  This application is refused.

Mr Jonathan Man, SGC of Department of Justice, for the Respondent

Mr Duncan Percy, instructed by Messrs Chan & Tsu, for the Appellant