Cheung Kin Cheung v. HKSAR

FAMC No. 41 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 41 OF 2008 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 168 OF 2007)

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Appeal Committee: Chief Justice Li and Mr Justice Bokhary PJ and Mr Justice Ribeiro PJ

Date of Hearing: 9 September 2008

Date of Determination: 9 September 2008

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

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Mr Justice Bokhary PJ :

1.The Court of Appeal having affirmed his conviction in the District Court of handling stolen goods, this applicant now seeks leave to appeal to the Court of Final Appeal under the “substantial and grave injustice” limb of s.32(2) of the Court’s statute.  There was no dispute that the goods concerned had been stolen.  Nor was there any dispute that the applicant dealt with them in a way which would amount to the offence of handling if he knew that they had been stolen.  So the only issue was whether he had such knowledge.  The trial judge found that he had.  That finding was attacked on his behalf in the Court of Appeal.  It was attacked as unsupported by the evidence and based on taking judicial notice of a fact not fit for judicial notice and then attributing knowledge of that fact to the applicant.  The fact in question concerned the time when offices in Central opened.  It was relevant to whether the circumstances under which the applicant received the goods from the burglar were inherently dubious.

2.In conformity with the approach indicated by the Court of Final Appeal in Chou Shih Bin v. HKSAR (2005) 8 HKCFAR 70, the Court of Appeal examined the evidence and considered the complaint in regard to judicial notice.  Taking the view that the evidence as a whole warranted the trial judge’s finding and that she did not rely solely on the time when offices in Central opened, the Court of Appeal did not consider the conviction unsafe or unsatisfactory.

3.It is not reasonably arguable that there has been a departure from accepted norms such as to warrant leave to appeal under the “substantial and grave injustice” limb.  Leave to appeal is therefore refused.

Mr Philip Wong (instructed by Messrs Chow & Ho and assigned by the Legal Aid Department) for the applicant

Mr William Tam (of the Department of Justice) for the respondent