Chan Mei Yiu, Paddy and Others v. Secretary for Justice and Another

CACV 125/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 125 OF 2013

(ON APPEAL FROM HCAL NO. 74 OF 2013)

________________________

BETWEEN

________________________

________________________

________________________

Hon Stock VP (giving the judgment of the Court):

1.On 5 July 2013 we dismissed the appeal in this case and said that we would give our reasons later. We handed down our Reasons for Judgment this morning.

2.The parties have been given in advance a copy of the Reasons, in the light of which we are presented this morning with a Notice of Motion pursuant to the provisions of section 32(2) of the Court of Final Appeal Ordinance, Cap. 484, by which the applicants seek a certificate that points of law of great and general importance are involved in our decision. 

3.The points of law proposed are these:

“(1) Whether, for the purpose of section 5(1)(e) of the Mutual Legal Assistance in Criminal Matters Ordinance, Cap 525 (read with section 8(2)(b) thereof), the statements contained in a request for assistance in a criminal matter are conclusive as regards the external offence(s) under investigation in that place at the time of the said request; and

(2) Whether the 1^st Respondent has a discretion to give effect to a request which does not comply with section 8(2)(b) of the said Ordinance.”

4.We do not think these are appropriate questions for certification.  The Court held that in the circumstances of this case, the ambit of the Letter of Request as supplemented by the public prosecutor was entirely clear; and that in the light of the details in the Letter of Request and in the supplementation thereto and in the light of the subsequent explanation provided by the public prosecutor, the Secretary for Justice was perfectly entitled to act upon it in the manner in which he did.  The question of conclusiveness was not argued before us and for the reasons we have now explained, it did not, on the fact of this case, arise.  Accordingly we refuse to certify the first question. 

5.As to the second question, it does not arise because it pre-supposes non-compliance with section 8(2)(b) of the Ordinance, and we do not think it reasonably arguable that there was non-compliance with the requirements of that subsection. 

6.Accordingly, the application for a certificate is refused.

Mr Martin Lee, SC & Mr Steven Kwan, instructed by Haldanes for the 1^st to 6^th Applicants

Mr Wayne Walsh, Deputy Law Officer (Mutual Legal Assistance), of Department of Justice, for the 1^st and 2^nd Respondents