Lo Wai Yan v. HKSAR

FAMC No. 101 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 101 OF 2010 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 254 OF 2009)

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Between:

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DETERMINATION

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Mr Justice Bokhary PJ :

1.This applicant, a solicitor of previous good character, seeks leave to appeal to the Court of Final Appeal against her conviction for conspiracy to commit the offence of maintenance and against the sentence of 15 months’ imprisonment passed on her upon that conviction.  She seeks such leave under both “the point of law” limb and the “substantial and grave injustice” limb of s.32(2) of the Court’s statute.

2.The Court of Appeal has certified the involvement of a point of law of great and general importance.  It is the point raised by the question of whether the definition of the offence of maintenance is sufficiently certain to comply with the “prescribed by law” clause of art.39 of the Basic Law and the “according to law” clause of art.11(1) of the Bill of Rights.  This involves, first of all, determining what the definition of maintenance is.  Then it involves determining whether that definition is sufficiently certain to be constitutional.  If it is not, then the applicant’s conviction cannot stand.  If it is, then the applicant’s conviction may or may not stand upon an application of the law to the facts found.

3.Whether the facts found against the applicant can themselves stand is what she wishes the Court of Final Appeal to consider under the “substantial and grave injustice” limb.

4.The certified point of law is worthy of the Court of Final Appeal’s attention.  Leave to appeal in order to pursue it is granted.  But such grant of leave does not extend to the point which the Court of Appeal refused to certify, being the one to the effect that any offence of maintenance would fall foul of the “right of access to the courts” clause of art.35 of the Basic Law.  We do not consider that reasonably arguable.  As for the “substantial and grave injustice” limb, we grant leave to appeal against conviction under that limb, too.  We say nothing more in that regard.  What remains is the matter of sentence.  If the conviction is eventually upheld, it would remain to be seen on what basis that is done.  A point of sentencing principle may arise.  And the Court would be in a better position to do justice if the matter of sentence is also before it. 

5.Leave to appeal against conviction and sentence is granted on the bases stated.

[Bail pending appeal was granted on the terms on which the applicant was granted bail pending the leave application.]

Mr Clive Grossman SC, Mr Lee Siu Him and Mr Chase Pun (instructed by Messrs Kong & Chang) for the applicant

Mr Kevin P Zervos SC and Mr Raymond Cheng (of the Department of Justice) for the respondent