HKSAR v. Ho Ka Kei Ricky

HCMA 436/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 436 OF 2013

(ON APPEAL FROM KTCC 2290/2013)

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REASONS FOR DETERMINATION

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1.This application arises from an appeal against the decision of a magistrate, to which I have dismissed on 29 October 2014 with reasons for judgment handed down on 18 November 2014. Notice of Motion were filed on 19 November 2014.

2.Background and facts of the case are laid out in full in my judgment which I am not going to repeat or recite.

3.According to s 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484：

“(2) Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done.”

4.The point of law stated to be certified is as follows:

“On charges of behaving in a disorderly manner in a public place whereby a breach of the peace is likely to be caused, contrary to s 17B(2) of the Public Order Ordinance, Cap 245, when the court is determining whether a breach of the peace is likely to be caused is it correct that there are two categories of cases, namely:

(1) Cases which require the court to deal with specific circumstances which may result in a breach of the peace being committed; and

(2) Cases which may be decided upon common sense, based on the characteristics of the Hong Kong general public and the general conditions of city life in Hong Kong?”

5.Counsel for the appellant relied on the case of Chow Nok Hang and submitted that that case set out in detail the approach to be taken in all s 17B(2) cases. Counsel begged to differ from the reasons set out in paragraph 11 to 15 of my judgment, in particular, the finding that up‑skirt photograph category of cases could be reconciled with the judgment in Chow Nok Hang through the application of the obiter judgment of  D Pang J in Chiu Hin Chung.  It was submitted that Chiu’s case was decided before Chow Nok Hang and that approach of D Pang J was not endorsed in Chow’s case.  Therefore the question of whether I was correct in following the obiter judgment in Chiu Hin Chung was a point of law worthy to be certified.

6.Counsel for the respondent disagreed and submitted that the factual situation of Chow’s case did not concern the taking of up‑skirt photograph, and whilst laying down general principles their Lordships made no mention of any disapproval of the dicta of D Pang J in Chiu Hin Chung, and had their views been otherwise, they would have mentioned it.

7.I agree with the respondent.

8.I am of the view that the present case involved application of well settled principles of law and so I decline to grant s 32 certificate to the Court of Final Appeal certifying the above two points.

Mr Prakash L Daryanani, SPP of the Department of Justice, for the respondent

Mr Oliver H Davies leading Mr Albert K K Fung, counsel instructed by Wong & Co, for the appellant