Read the full judgment text of HCMA 928/2010 on BabelCite. This Court of First Instance judgment was delivered on 3 March 2011 before 杜麗冰 (暫委法官).
Criminal law – Fixed Penalty (Traffic Contraventions) Ordinance (Cap 237) – three offences of illegal parking – appeal against conviction – constitutional challenge to the Basic Law – whether failure to legislate Article 23 of the Basic Law deprived the HKSAR government of prosecutorial power – whether there is a legal vacuum in Hong Kong's legal system pending Article 23 legislation – whether the CFA's referral for interpretation in FAMC 28/2009 violated Article 158 of the Basic Law – whether prior decision in HCMA 1100/2008 was binding – whether the magistrate erred in law. The appellant was convicted after trial in the Eastern Magistrates' Court of three offences under the Fixed Penalty (Traffic Contraventions) Ordinance (Cap 237). Unrepresented at trial, he did not testify or call witnesses. His principal defence was a constitutional challenge asserting that the HKSAR government had not fulfilled its constitutional duty by legislating under Article 23 of the Basic Law to prohibit treason and related acts, and had thereby lost prosecutorial power, rendering the prosecution invalid. He further argued that the CFA's referral of the prior case HCMA 1100/2008 to the NPC Standing Committee in FAMC 28/2009 violated Article 158 of the Basic Law. The magistrate rejected all three constitutional arguments and convicted the appellant. On appeal, the Court of First Instance upheld the magistrate's decision, holding that under Article 63 of the Basic Law the Secretary for Justice prosecutes on behalf of the entire HKSAR and is not subject to interference; that following HKSAR v Ma Wai Kuen, the Basic Law clearly intends no change in Hong Kong's laws and legal system and contemplates no legal vacuum, however brief; that the appellant's complaint about the CFA's interpretation referral was based on a misunderstanding of Article 158, and the magistrate correctly considered Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4 and Ng Siu Tung v Director of Immigration (2002) 5 HKCFAR; and that HCMA 1100/2008 was not binding, as its observations were merely the personal opinion of that judge without substantive legal reasoning. The appeal against conviction was dismissed and the original conviction upheld.
Legal issues: Whether HKSAR lost prosecutorial power due to failure to legislate Article 23 of the Basic Law · Whether there is a legal vacuum in the HKSAR's legal system · Whether the CFA's referral for interpretation in FAMC 28/2009 violated Article 158 of the Basic Law · Whether prior case HCMA 1100/2008 was binding on the magistrate
Outcome: Appeal against conviction dismissed; original conviction upheld.
Cites 2 cases