Yip Lap Chau v. HKSAR

FAMC No. 27 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 27 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 688 OF 2004)

_____________________

Between:

_____________________

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

Date of Hearing: 26 May 2005

Date of Determination: 26 May 2005

________________________

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

________________________

Mr Justice Bokhary PJ:

1.This applicant was convicted after trial in the Magistrate’s Court on two charges of theft.  His convictions were affirmed on intermediate appeal by the High Court.  And he now seeks leave to appeal finally to the Court of Final Appeal on the “substantial and grave injustice” basis.

2.In so far as the application relates to the facts, it suffices for us simply to say that there is no reasonably arguable case of any departure from accepted norms so serious as to warrant an appeal to the Court of Final Appeal. 

3.That leaves the complaint that the High Court did not deal with three of the applicant’s grounds of appeal.  Looking at those three grounds, one sees that they consist of complaints that the magistrate had failed to give any consideration to a certain fact, that he had failed to take into account another fact and that he had given no or no sufficient consideration to the contents of a certain document.

4.Similar complaints were made in Chung Wai Leung v. HKSAR, FAMC No. 64 of 2004 (11 January 2005).  Giving the determination of the Appeal Committee refusing leave to appeal to the Court of Final Appeal, Mr Justice Chan PJ referred (in para. 3) to the statement in the English Court of Appeal in Dorrington v. Griff Fender (Swansea) Ltd [1953] 1 WLR 690 at p.694 that “[m]erely because a judge does not mention a thing, it does not follow that he has not had it in mind”.  Then Mr Justice Chan PJ referred to the statement in the High Court in HKSAR v. Singh Balraj [2003] 3 HKC 621 at pp 625I-626A that although Dorrington’s case was a civil case the observation therein “holds good for criminal cases too, subject only to the particular caution called for in criminal cases”.  That statement in the High Court was endorsed by Mr Justice Chan PJ for the Appeal Committee. 

5.Just as one can normally trust the trial court not to have ignored relevant matters, so one can normally trust the appellate court not to have ignored a complaint that the trial court had ignored such matters.

6.We thank Mr Mumford for his sustained submissions on behalf of his client but are unable to accede to them.  Accordingly leave to appeal to the Court of Final Appeal is refused.

Mr E.C. Mumford SC (instructed by Messrs C.W. Yuen & Co.) for the applicant

Mr Alex Lee (of the Department of Justice) for the respondent