Lo Kwong Yin v. HKSAR

FAMC No. 5 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 5 OF 2010 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 223 OF 2008)

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Between:

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

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Mr Justice Chan PJ:

1.The Court of Appeal applied the correct test on the proviso, namely, the test of inevitability. It is submitted on the applicant’s behalf that it is reasonably arguable that the Court of Appeal’s view that the conviction was inevitable defies logical analysis and constitutes a departure from accepted norms so serious as to constitute a substantial and grave injustice. In our view, that is not reasonably arguable. The view which the Court of Appeal took was one which it was entitled to take. Leave to appeal is therefore refused.

2.Before parting with this matter, there is one thing more to be said. Counsel for the applicant placed before us a document containing the written reasons which he had given to the Director of Legal Aid purporting to certify that the applicant had reasonable prospects of success in an appeal to the Court of Final Appeal. Such reasons contain counsel’s opinion. We are not concerned with counsel’s opinion, only with his submissions. In future, such a document should not be put before the Court.

Mr John Haynes (instructed by Messrs Ivan Tang & Co. and assigned by the Department of Legal Aid) for the applicant

Mr Wesley W C Wong (of the Department of Justice) for the respondent