HKSAR v. Mui Kwok Keung

CACC 133/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 133 OF 2013

(ON APPEAL FROM DCCC NO. 890 OF 2012)

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BETWEEN

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D E C I S I O N

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Hon Macrae JA (giving the decision of the Court):

1.On 8 October 2013, the applicant’s appeals against conviction and sentence were dismissed by this Court. The reasons for our decision were handed down on 18 November 2013. The applicant now files notice of his intention to appeal to the Court of Final Appeal and invites this Court to certify under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 that certain points of law of great and general importance are involved in the decision.

2.The parties have both indicated in writing their agreement to this application being determined on the papers.

3.Although the application for a certificate was not made within the time limits set out in the Practice Direction, Ms Ching for the respondent takes no issue on the point given that the applicant is now unrepresented, the delay is not substantial and the applicant has had to arrange to file his own documentation from prison.

4.We take, as does the respondent, the matters of law upon which a certificate is sought to be those set out in paragraph 6 of the applicant’s Notice of Motion.  They have been expressed as follows:

i. Whether the trial judge was wrong for having failed to consider the public policy and the related exceptions for excluding criminal liability in the offences of maintenance and champerty;

ii.  Whether the trial judge had properly or at all considered the category of ‘common interest’ to exclude the criminal liability in the offence of champerty against the applicant; and

iii.  Whether the trial judge was wrong to find that the applicant’s conduct had posed a genuine risk to the integrity of the judicial process.

5.The points of law of great and general importance said to arise from the decision of this Court are not properly articulated: indeed, as stated, they are simply a recitation of the complaints made before us against the trial judge’s reasons for verdict.

6.However, looking at the Notice of Motion, which includes the applicant’s arguments in support, we take the applicant to be saying by (i) above that, the trial judge having failed properly to consider the exceptions to liability for champerty which modern changes in public policy have forged, this Court has sought by its judgment to exclude legal practitioners from the ambit of those exceptions.  Thus, the exclusion of legal practitioners from the exceptions to champertous liability is a point of law of great and general importance.

7.This Court did not suggest that legal practitioners are excluded from any of the exceptions which have been fashioned by changes in public policy and the authorities.  Indeed, it acknowledged those exceptions but made clear that there were obvious and good reasons why the common law offence of champerty retains a particular application to the legal profession and why it may necessarily be harder for legal practitioners to avail themselves of those exceptions.  The facts of this particular case, which the Court described in the concluding paragraph of its judgment as “egregious”, amply demonstrate why that is so.

8.In our judgment, the submission does not properly derive from what this court has said, nor could it conceivably arise on the facts of this case.  We decline to certify point (i).

9.So far as point (ii) above is concerned, we again take the applicant, from his ensuing argument in the Notice of Motion, to be saying that as the plaintiff’s barrister, he had a common interest in the outcome of the proceedings and thereby came within the ‘common interest’ exception to liability for champerty.  Presumably, therefore, the point of law advanced as one of great and general importance is that a legal representative in a champertous arrangement with a party to proceedings cannot be liable because of his ‘common interest’ in the outcome of those proceedings.

10.The argument is, with respect, as extraordinary as it is circular.  Although this Court addressed the matter at para 62 of its judgment by reference to the judgment of Sir Thomas Bingham MR (as he then was) in the Court of Appeal decision in Giles v Thompson [1993] 3 All ER 321, at 347, the point was also succinctly dealt with in the judgment of Steyn LJ (as he then was), at 333:

“Conceptually, it also seems to me that, if the law was that the interest could be created by the very agreement which is challenged as champertous, the exception would swallow up the rule.”

11.We do not consider that point (ii) is arguable or that it raises any point of law of great and general importance.

12.It is next contended at point (iii) above that the judge was wrong to find that the applicant’s conduct posed a genuine risk to the integrity of the judicial process.  We are not clear what point of law of great and general importance is being raised by this contention.  Whether or not it can ground such a point of law, the fact is that the trial judge considered the obvious risks to the integrity of the judicial process to which the applicant’s actions had clearly exposed it.  Moreover, such risks, in the context of the evidence in this case, were expressly dealt with in some detail at para’s 67 – 72 of the judgment of this Court.

13.We do not think there can be any basis on the evidence and in the circumstances of this case for such a contention.

14.For the above reasons, the application for a certificate is refused.

Jasmine Ching SPP, of the Department of Justice, for the Respondent

The Applicant, in person