HKSAR v. Lau Hon Keung

FAMC No. 41 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 41 OF 2010 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 156 OF 2009)

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Between:

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DETERMINATION

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Mr Justice Ribeiro PJ:

1.The applicant was the first of nine defendants charged with conspiracy to keep a vice establishment.  He and the 2nd and 3rd defendants, in various combinations, were also charged with money laundering offences relating to the receipts of four massage parlours which allegedly operated as vice establishments.  This leave application is concerned in particular with Charges 4 and 7 alleging money laundering by the applicant in relation to two different massage parlours.

2.The prosecution’s case as to the operation of vice establishments relied substantially on the evidence of undercover police officers.  In the course of the trial, the wife of the 4th defendant surreptitiously recorded conversations in a witness waiting room used by the police prosecution witnesses.  On the basis of such recordings, a submission of no case to answer was successfully made by all the defendants before the trial judge, Deputy District Judge Jenkins.  The thrust of that submission was that the evidence of several prosecution witnesses had been contaminated by their evidence being discussed with them or in their presence.

3.The Secretary for Justice appealed to the Court of Appeal by way of case stated against the ruling of no case to answer.  The Court of Appeal allowed the appeal on a narrow basis, confining its decision to the applicant and in relation only to Charges 4 and 7.  They concluded that on those two money laundering charges, there was evidence other than contaminated evidence upon which a jury properly directed “could, may or might” be satisfied beyond reasonable doubt of all the elements of the offence.   In so doing, they considered the proper application of the test as set out in the judgment of Kempster JA in AG v Li Fook Shiu, Ronald.[1]

4.That was a fact-specific decision of an essentially interlocutory nature which the Court of Appeal was perfectly entitled to reach.  The question whether a ruling of no case is supportable on the evidence is clearly a matter of law within section 84 of the District Court Ordinance.  It raises no questions of law of great and general importance.  Nor is it reasonably arguable that it involves a departure from legal norms so serious as to constitute a substantial and grave injustice.  Any future applications of this nature can expect to be dealt with summarily under the Court’s Rule 7 procedure.  This application must be dismissed.

Mr Toby Jenkyn-Jones and Mr Nicholas Lau (instructed by Messrs Anthony Kwan & Co.) for the applicant

Mr William Tam and Ms Agnes Chan (of the Department of Justice) for the respondent