HKSAR v. Yeung Mok Yeh

CACC483/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 483 OF 2004

(ON APPEAL FROM HCMP NO. 2209 OF 2004 AND HCCC 239 OF 1990)

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BETWEEN

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and

CACC57/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 57 OF 2005

(ON APPEAL FROM HCMP NO. 2211 OF 2004 AND HCCC 239 OF 1990)

_________________________

BETWEEN

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Before : Hon Ma CJHC, Woo V-P and Stock JA in Court

Date of Hearing : 6 October 2005

Date of Judgment : 6 October 2005

Date of Handing Down Addendum : 22 December 2005

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A D D E N D U M

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Hon Ma CJHC :

1.On 6 October 2005, this Court delivered judgment in two applications, seemingly for certificates under section 32(2) of the Court of Final Appeal Ordinance. In the course of the judgment, criticism was levelled at counsel in relation to the grounds of the application put forward and in relation to the delay in making the application and the absence of an application for an extension of time.  In particular, we drew attention to the clear provisions as to time contained in the Hong Kong Court of Final Appeal Ordinance, Cap.484 (s.33) and Practice Directions 2.2 and 4.3.

2.In the course of general remarks made about the duty of counsel and solicitors, the Court referred also to the conscientiousness to be expected of solicitors, stating that the observance of time limits and of Practice Directions was a matter for solicitors as well as for counsel. In the context of the case in question, this was taken as a criticism of the solicitors, Messrs Reimer and Partners, who had instructed counsel in the case.

3.Following that judgment, the Court received representations as to the events preceding the hearing and, in particular, as to the role played by the firm in relation to certain of the matters that eventually so concerned the Court. The Court has investigated the question in the light of the representations made and is satisfied that :

(1) the solicitors were at all times aware of the requisite time limits and the relevant Practice Directions;

(2) the solicitors raised with counsel the fact that the application for a certificate was out of time; and

(3) the solicitors were led to believe that an application would be made to the Court by counsel for an appropriate extension of time..

4.Accordingly, the Court is further satisfied that the solicitors were in the circumstances entitled to rely upon counsel’s assurance that he was aware of the time factor and that he would make an appropriate application. That such an application was not made is an omission that does not lie at the door of the solicitor’s firm. Given the adverse publicity following the judgment, this Court, of its own motion, issues this addendum to make clear that, given the facts revealed since the hearing, no criticism can properly be made of the solicitors’ conduct in the matter. It follows that the criticism of the solicitors implicit in the judgment of 6 October 2005 is withdrawn.

Mr Richard D Donald instructed by Messrs Reimer & Partners for the Applicants

Mr D G Saw SC and Mr Vincent Wong of the Department of Justice for the Respondent