HKSAR v. Kit Choy Development Ltd

HCMA 386/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 386 OF 2008

(ON APPEAL FROM ESS 32357/2006)

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 13 February 2009

Date of Decision: 13 February 2009

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D E C I S I O N

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1.The appellant company is represented by Mr Choy, and the notice of motion asks this court to certify the points of law for the Court of Final Appeal because it is a matter of great and general importance.

2.The points of law that I have been asked to certify are these:

(1) Whether it is an independent criminal case for a case when a prosecution is based upon a court order made and signed by a magistrate which differs in law and in substance from other criminal cases based upon statutory directions issued by an administrative authority over the same subject matter; and

(2) whether it is the essence of criminal law to call upon the maker of a court order to be the material witness for cross-examination by defence on the workability of the court order which is the root of the conviction.

3.The relevant statutory section dealing with applications of such nature is enshrined in the Court of Final Appeal Ordinance, Chapter 484, section 32(2) of the Ordinance.  It is clear that the court has to consider whether this is a matter of law that is of great and general importance in order to certify it.

4.Mr Choy has many grievances.  Contrary to what he believes, each of us, judges, do not act, according to him, in a “birdcage”.  We have to consider each case on its merits.  The matter of the appeal, which was handled by myself in the magistracy appeal, has dealt with his grounds of appeal, and I do not consider that the questions formulated by Mr Choy, on behalf of his company, are matters of law of great and general importance.

5.Mr Chung, in his submission, states that it is impossible for a magistrate to be called.  That is not the case, that really depends on the circumstances of each case and relevance and materiality.  In this case, the learned Magistrate had considered the matter and it was decided that it was not material nor, at the end of the day, affected his ruling on the matter.

6.Mr Choy is feeling very aggrieved by this.  However, that does not make the questions that he had formulated into one of great and general importance.  Mr Choy knows that if his application is refused today, he still has the opportunity to go directly to the Court of Final Appeal and asks for leave to appeal on the basis that the conviction was unfair.

7.As for the certificate, I do not feel that the question that has been raised is of great and general importance and, therefore, I decline the motion.  The application is refused.

Mr Frederick Chung, Senior Public Prosecutor, for the Respondent

The Appellant, represented by Mr Choy Bing-wing