Securities and Futures Commission v. Zou Yishang

HCMA859/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 859 OF 2005

(ON APPEAL FROM ESS 12652 OF 2004)

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BETWEEN

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Before:  Hon Stuart-Moore VP, Burrell and McMahon JJ, in Court

Date of Hearing:  27 March 2007

Date of Ruling:  27 March 2007

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RULING

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Hon McMahon J:

1.This is an application pursuant to section 32(2) of the Court of Final Appeal Ordinance, Cap. 484 for a certificate that points of law of great and general importance arise out of the judgment we delivered on 14 March 2007.

2.The application dated 16 March of this year identifies four points of law:

(a)   whether the meaning of “intention” is the same in every context of the criminal law or whether it depends on the particular context of the offence;

(b)  whether the mens rea of the offence under section 135(1)(a) of the Securities Ordinance, Cap. 333 requires a specific intent of a sole or primary purpose and that knowledge or foresight that a result was virtually certain is not sufficient basis for finding the existence of the required mens rea;

(c)   whether the direction formulated in R v Nedrick [1986] 83 Cr App R 267, at 270-1 and as approved and amended in R v Woollin [1999] 1 Cr. App R 8 is of general application to all offences of specific intent; and

(d)  whether a person who is closely connected with the investigation and/or prosecution of a criminal offence should be permitted to give expert evidence against the defendant in the trial of the criminal offence.

3.In our view, these points either raise matters of settled law which require no clarification and which are unambiguous in their application, as in the case of points (a), (c) and (d), or, in the case of point (b), is directed at a specific argument which appears to us to be unsustainable and which was sufficiently answered in the judgment.

4.In the circumstances, we do not think it appropriate to grant a certificate and the application is dismissed.

Mr Adrian Bell, instructed by the Securities and Futures Commission, for the Respondent

Mr Lawrence Lok, SC, leading Mr Newman Lam, instructed by Messrs Li & Partners, for the Appellant