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HKSAR v. Chan Peter

Read the full judgment text of FAMC 35/2005 on BabelCite. This FAMC judgment was delivered on 4 October 2005.

1. The applicant, a practising solicitor, was convicted in the District Court of conspiring to defraud a company of which he was the legal adviser.  He was sentenced to five years’ imprisonment.  His conviction and sentence were affirmed by the Court of Appeal.  And he now seeks leave to appeal against conviction and sentence to the Court of Final Appeal on the “substantial and grave injustice” limb of s.32(2) of the Court’s statute.  His counsel has taken care to see that everything that can po

Case No.FAMC 35/2005
Court
FAMC
Date04 Oct 2005
Judge—
Case Document
100%Judiciary

FAMC No. 35 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 35 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 102 OF 2004)

_____________________

Between:

　 HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent
　 and 　
　 CHAN PETER Applicant

_____________________

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

Date of Hearing:

4 October 2005

Date of Determination:

4 October 2005

_____________________

DETERMINATION

_____________________

Mr Justice Bokhary PJ:

1.The applicant, a practising solicitor, was convicted in the District Court of conspiring to defraud a company of which he was the legal adviser.  He was sentenced to five years’ imprisonment.  His conviction and sentence were affirmed by the Court of Appeal.  And he now seeks leave to appeal against conviction and sentence to the Court of Final Appeal on the “substantial and grave injustice” limb of s.32(2) of the Court’s statute.  His counsel has taken care to see that everything that can possibly be said on his behalf has been said.

2.In regard to conviction, leave is sought on the basis of a complaint that the trial judge had failed to take into account some evidence favourable to the defence.  Having considered this complaint, we find no reasonably arguable case of any departure from accepted norms.  Accordingly leave to appeal against conviction is refused.

3.Two complaints are made in regard to sentence.  One is to the effect that certain payments giving rise to civil liability only were taken into account against the applicant when assessing the extent of his criminality.  The other is that mitigating factors available to the applicant were not given sufficient weight.

4.It would take rare and exceptional circumstances indeed to warrant leave to appeal to the Court of Final Appeal against sentence in the absence of some controversy over a sentencing principle of great and general importance.  No such circumstances are involved in this case.  Accordingly leave to appeal against sentence is also refused.

(Kemal Bokhary)
Permanent Judge		 (Patrick Chan)
Permanent Judge		 (R.A.V. Ribeiro)
Permanent Judge

Mr Naresh L Daryanani (instructed by Messrs Raymond Chan, Kenneth Yuen & Co.) for the applicant

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