Lam Yuk Fai Steve v. HKSAR

FAMC No. 44 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 44 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NO. 94 OF 2001)

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Between:

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Appeal Committee: Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Chan PJ

Date of Hearing: 14 November 2005

Date of Determination: 14 November 2005

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

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Chief Justice Li :

1.We do not consider that the grounds advanced by the applicant for leave to appeal against the conviction on Count 2 are arguable.  His application for leave to appeal on Count 2 is dismissed.

2.We are prepared to grant leave to appeal against his conviction on Count 3 on both the point of law limb and the substantial and grave injustice limb.  And we extend time to appeal.

3.In relation to the point of law limb, we would certify the following points of law :

(1)	What is the meaning of the word “transfer” in s.42(2)(a)(ii) of the Immigration Ordinance, Cap.115?
(2)	Under s.42(2)(a)(ii), who has the burden in relation to “without reasonable excuse” and depending on the answer, is that provision constitutional?

4.On the appeal, as Mr WcWalters SC’s indicated, the Court would have to consider submissions on the application of the proviso.

Mr Wong Hay-yiu (instructed by Messrs Johnny K.K. Leung & Co) for the applicant

Mr I.C. McWalters, SC and Mr Anthony Cheang (of the Department of Justice) for the respondent