HKSAR v. Tang Chi Ming, Thomas and Another

HCMA249/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 249 OF 2007

(ON APPEAL FROM KTCC 4046 OF 2006)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 14 December 2007

Date of Ruling : 17 December 2007

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R U L I N G

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1.This is an application, arising out of the judgment I handed down a few moments ago, for a certificate for this matter to go to the Court of Final Appeal on the basis of a point of law of great and general importance having arisen.  The two points that are the subject of the application are expressed as follows :

(1)

must all the factors set out in R. v. Brown (1981) 3 Cr.App.R. (S) 294 at 295 be present before a court in Hong Kong could consider an offender to be suitable for a community services order; and

(2)

if so, what would constitute remorse in the context of a convicted offender who continued to assert his innocence during the sentencing procedure.  So far as this point is concerned let me immediately say that I do not see any point of law involved in respect of that point.  Indeed it seems to me the question can be answered by simple common sense and I certainly will not contemplate certifying that question.

2.So far as the first question is concerned, I will not certify that either.  It seems to me that the law has been resolved in Hong Kong in this regard and the present status of the law is that all of those matters set out in Brown, if not most of them, must be present before a community services order is thought to be suitable.

3.I must say I am a little bit perplexed by this application because in my recent judgment it may well be that I was overly generous to the 2^nd appellant in the sense that I proceeded on the basis that the particular point that Mr Lee seeks to certify did not require necessarily all factors set out in Brown to be present before a community services order could be granted.  That means of course that even if Mr Lee is right in trying to have this point dealt with by the Court of Final Appeal, it may be of absolutely no use at all in so far at least my judgment is concerned because that judgment proceeded on the basis that demonstration of remorse was not a determining factor.

4.Accordingly I decline to certify the two points of law proposed.

Mr Jonathan T.H. Man, SGC of the Department of Justice, for HKSAR

Ms Mina W.Y. Heung, instructed by Messrs Leung & Lien, for the 1^st Appellant

Mr Martin Lee, SC leading Ms Bonnie Tam, instructed by Messrs Ho, Tse, Wai & Partners, for the 2^nd Appellant