Ching Kun Kin v. HKSAR

FAMC No. 53 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 53 OF 2009 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 192 OF 2008)

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Appeal Committee : Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing : 30 October 2009

Date of Determination : 30 October 2009

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DETERMINATION

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Mr Justice Bokhary PJ :

1.This applicant was convicted after trial in District Court on seven charges.  Six are of dealing with property known or believed to represent the proceeds of an indictable offence.  One is of conspiracy to keep a vice establishment.  The convictions were affirmed by the Court of Appeal.  And the applicant now seeks leave to appeal to the Court of Final Appeal.  He seeks such leave under the “substantial and grave injustice” limb of s.32(2) of the Court’s statute.  It is submitted on his behalf that it is reasonably arguable that there has been to his disadvantage a departure from accepted norms so serious as to warrant leave to appeal under that limb.  The complaint is two-fold.  First, it is complained that the trial judge had failed to give adequate reasons for her verdict.  Secondly, it is complained that she had failed properly to consider the defence.  This two-fold complaint is now renewed before us.  It had been considered by the Court of Appeal at some length and then rejected by them, they saying this :

“We accept that some of the judge’s reasoning might ideally have been fuller and more clearly defined.  We are satisfied however that, when the Reasons for Verdict are read as a whole, they demonstrate, first, that the judge was aware of the major elements of the defence and, second, that she resolved inconsistencies and conflicts in the evidence not merely by making conclusory remarks, as counsel for the applicant submitted, but by making a substantive evaluation of the relevant evidence and coming to findings that, in our view, were entirely warranted.”

2.This case does not involve any controversy as to the duties of a trial court in regard to the considering the defence and giving reasons.  Where it is complained that a trial court has not met the requirements of those duties, the intermediate appellate court is naturally not only the first but almost always also the last appellate court to decide on the correctness or otherwise of the complaint.  That is not to say that its decision can never be taken on further appeal.  It can be if it is reasonably arguable that the intermediate appellate court had not accorded the complaint due consideration or has arrived at an untenable conclusion.  There is, however, no reasonable basis for arguing anything of that sort in the present case.  Leave to appeal to the Court of Final Appeal is therefore refused.

Mr Daniel Marash SC and Mr Lee Siu Him (instructed by Messrs C.L. Chow & Macksion Chan) for the applicant

Mr Robert S.K. Lee SC and Ms Hermina Ng (of the Department of Justice) for the respondent