Lau Tung Chee Alan v. HKSAR

FAMC No. 58 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 58 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 457 OF 2003)

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Between:

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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.The applicant and his co-accused were convicted after trial in the District Court on a charge jointly laid against them of offering advantages to an agent, contrary to sections 9(2)(b) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201.  By a majority the Court of Appeal (Stuart-Moore VP and Lunn J, Stock JA dissenting) affirmed their convictions by applying the proviso.  The applicant now seeks leave to appeal to the Court of Final Appeal.  He seeks such leave on both limbs of s.32(2) of the Court’s statute.

2.As far as the “point of law of great and general importance” limb is concerned, the Court of Appeal were unanimous in refusing to certify any such point.  In our view, they were right in refusing a certificate.  No controversy as to principle is involved.  It is necessary to bear in mind the fact-sensitive nature of situations of this kind.  This can be illustrated by comparing and contrasting the present case with the devolution cases before the Privy Council in Holland v. Her Majesty’s Advocate [2005] UKPC D1 and Sinclair v. Her Majesty’s Advocate [2005] UKPC D2.  The non-disclosure in each of those two cases kept the defence wholly in the dark on important matters.  In the present case the defence was aware, as was the trial court, that the witness in question was a tainted witness who hoped to benefit from giving evidence for the prosecution.  The non-disclosure only went to some of the specific steps taken with a view to securing such benefit. 

3.Turning to the “substantial and grave injustice” limb, the question is whether it is reasonably arguable that the majority in the Court of Appeal departed from accepted norms in their application of the proviso.  That is a different question from whether, on these facts, we, if we had been sitting in the Court of Appeal, might well have, or even probably would have, inclined towards the course followed by Stock JA.  We do not feel able to say that it is reasonably arguable that the course followed by the majority amounted to a departure from accepted norms justifying a final appeal even in the absence of any controversy as to principle.

4.Accordingly leave to appeal is refused.

Mr Peter Duncan SC and Ms Maggie Wong (instructed by Messrs Dominic Y.K. Lai & Co.) for the applicant

Mr I.C. McWalters SC and Ms Winnie Ho (of the Department of Justice) for the respondent