John Chung Kwan Canty v. HKSAR

FAMC No. 29 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 29 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
CACC NO. 405 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: 24 May 2005

Date of Determination: 24 May 2005

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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.Arising out of a violent incident involving two groups in a discotheque, this applicant was convicted after trial in the District Court on seven charges of wounding with intent and one charge of causing grievous bodily harm with intent.  His convictions were affirmed by the Court of Appeal.  He now seeks leave to appeal to the Court of Final Appeal.

2.Some of the grounds now put forward on his behalf had been raised in the Court of Appeal.  No arguable departure from accepted norms is involved in the Court of Appeal’s rejection of those grounds.

3.That leaves the grounds which are now put forward on the applicant’s behalf even though they had not been raised in the Court of Appeal.  There is no absolute rule against raising grounds for the first time when seeking leave to appeal to the Court of Final Appeal.  But in such a situation an applicant will have a very high hurdle to get over – especially when, as in the present case, seeking leave on the “substantial and grave injustice” basis in regard to matters of the kind quintessentially for an intermediate court of criminal appeal to sift.

4.The applicant is unable to get over that high hurdle.  Leave to appeal to the Court of Final Appeal is accordingly refused.

Mr James McGowan (instructed by Messrs Haldanes and assigned by the Legal Aid Department) for the applicant

Mr Kevin P Zervos, SC (of the Department of Justice) for the respondent