HKSAR v. Lo Yuk Fai

HCMA 672/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 672 OF 2014

(ON APPEAL FROM KTCC 2611/2014)

____________

____________

____________

________________

DECISION

________________

1.This is an application for a certificate that the decision in the case involved a point of law of great and general importance.

2.Despite the trial, the appeal hearing and this application hearing were all conducted in Chinese, I prepare the Decision in English as parties were in consensus that it is convenient and desirable to do so.

BACKGROUND

3.On 30 October 2014, the Appellant was found guilty by a Magistrate after trial of two charges of Possession of a prohibited weapon[1] and was sentenced to 3 months’ imprisonment for each charge, to run concurrently.

4.He appealed against both the conviction and sentences.  I dismissed the appeal on conviction but allowed the appeal on sentences.

THE APPLICATION

5.By a Notice of Motion dated 26 May 2015, the Appellant applied under section 32(2) of the Hong Kong Court of Final Appeal Ordinance[2]for a certificate that a point of law of great and general importance was involved in my decision.

THE POINT OF LAW

6.The point of law which the Appellant asked this Court to certify is :

“Whether ‘any bladed or pointed weapon designed to be used in a fashion whereby the handle is held in a clenched fist and the blade or point protrudes between the fingers of the fist’ referred to in the Schedule of the Weapons Ordinance (Cap. 217) includes a weapon described as follows:

(1) A bladed or pointed weapon designed to be used in a fashion whereby the handle is held in a clenched fist;

(2) Part of the handle of the weapon protrudes between the fingers of the fist;

(3) The blade or point is additionally affixed onto the said part of the handle protruding between the fingers of the fist; and

(4) No part of the blade or point is in the clenched fist.”[3]

SUBMISSION

7.Counsel for the Appellant, Mr Alex Fan, submitted that the definition of prohibited weapons as provided in the Schedule of the Weapons Ordinance is so wide and obscure that possession of any object apparently and technically satisfying the definition would attract criminal liability.  There is a strong public interest for the Court of Final Appeal to clarify the definition of prohibited weapon so that the public will not commit an offence out of ignorance of the law.  It would also be for the benefit of law enforcing officers if the exact coverage of the prohibited items can be clarified. 

8.Mr Fan also submitted that to impose criminal liability upon possession of an object of private ownership is plainly a restriction on and an infringement of private property right, being a fundamental human right in a civil society.

9.He also pointed out that there has been no reported judgment in relation to the offence.

10.The submission of Miss CHAN Sui Tak, Monica, SPP (Ag), Counsel for the Respondent, boils down to the following points :

(a)   The application was lodged after the expiry date as set out in Practice Directions 2.2 and 4.3;

(b)   As the decision involved purely finding of facts, no point of law of great and general importance was involved in the decision of the present case;

(c)   In any case, the point is not reasonably arguable[4];

(d)   The points of restriction on and an infringement of private property right had not been raised in either the trial or the appeal.

11.In reply, Mr Fan made the following submission :

(1)There is no question of “out of time” in the context of an application for certificate.   Practice Direction 4.3 applies to appeals heard by the Court of Appeal only.    The Hong Kong Court of Final Appeal Ordinance does not prescribe a time limit for the application for a certificate.    The overall time limit for an application for leave to appeal to the Court of Final Appeal is 28 days from the date of the decision of the Court of First Instance[5].   The stipulation of “immediately after” in Practice Direction 2.2 should be read in context.  Paragraph 6 in the same Practice Direction stipulates that “a failure to make the application in accordance with these directions may make it difficult or impossible for the parties to comply with the time limit for applications for leave to appeal to the Court of Final Appeal”.

(2)The decision involved a point of law, as what a word or phrase means in its context, in other words its legal meaning, is a question of statutory interpretation, and therefore is a question of law.   The decision involved construction of the definition of prohibited weapon;

(3)There is no statutory requirement that the point should be reasonably arguable before a point of law to be certified.  Lee Kin Pong, the case which the Respondent relied upon, concerned an application for leave to appeal, as well as for an application for a certificate;

(4)If such requirement exists, there is at least a reasonably arguable case;

CONSIDERATION

12.In the present case, the decision on the appeal against conviction was announced on the day of hearing : 21 April 2015.  After the conviction was upheld, the hearing for appeal on sentence was adjourned to 7 May 2015 pending a Community Service Order report.  Judgment of the whole case was handed down on 15 May 2015.  The Notice of Motion was filed on 26 May 2015.

13.It is stipulated in paragraph 3 of the Practice Direction 2.2 that “applications for a certificate to the Court of Appeal or the Court of First Instance that the decision involves a point of law of great and general importance should be made immediately after the judgment is given from which the appeal is to be brought.”  It is further stipulated in paragraph 4 of the Practice Direction 4.3 that “any application for a certificate to the Court of Appeal that the decision involves a point of law of great and general importance should be made within 7 days of the handing down of the judgment from which the appeal is to be brought.”    Practice Direction 4.3, however, was issued specifically for criminal appeals in the Court of Appeal.  

14.As submitted by Mr. Fan, the stipulation in paragraph 3 in Practice Direction 2.2 of immediate application should be read in conjunction with paragraph 6 of the same Practice Direction.[6]

15.I am of the view, and the Respondent accepted, that even if the time in making the present application is a concern, this is not a case which the Court should refrain from proceeding to consider its merits. 

16.I agree with Mr. Fan that the decision involved both question of law and question of facts.  The question is whether the point of law is of great and general importance. 

17.The Respondent, in reliance on LEE Kin Pong v HKSAR, submitted that in consideration the Court should consider whether the point is reasonably arguable.  It was the submission of Mr. Fan that LEE Kin Pong should not be regarded as authority to support the proposition the Respondent suggested.  In that case, the Court of Final Appeal was dealing at the same time with applications both for a certificate as well as for leave to appeal.  What Bokhary PJ said was :

“Where in a criminal case leave to appeal to the Court of Final Appeal is sought on the basis that a point of law of great and general importance is involved in the decision, the point must be at least reasonably arguable before leave can properly be granted.”

Mr. Fan further submitted that whether a point of law of great and general importance should be certified and whether leave to appeal should be granted are two different matters and therefore the test of reasonably arguable is not necessarily applicable to the former.  He pointed out that, whilst an application for certificate can be made before both the Court of Final Appeal and the court hearing the appeal from the trial court, leave to appeal can only be obtained from the Court of Final Appeal.    Besides, leave to appeal can be granted on a separate basis if the Court of Final Appeal is satisfied that substantial and grave injustice has been done.  I agree to the view of Mr. Fan.

18.The points of restriction on and an infringement of private right in property, though had not been raised in either the trial or the appeal, were in any case relevant to the consideration of the degree of importance of the question.  Mr. Fan stressed that the offence is one which carries serious criminal sanction but can be committed even when the object in question was only kept at a private and secure place and without any evil intent as these are not prescribed as elements of the offence.    There is therefore a strong public interest for the Court of Final Appeal to clarify the definition of this sort of prohibited weapon.

19.The decision in this case involved both question of law and question of facts.  It involved a finding of facts upon construction of a statutory provision.  It concerned a finding of firstly whether the item in question was a weapon and then whether this particular piece of weapon falls within the statutory definition of the Weapons Ordinance.  The decision was very much facts sensitive, depending primarily on the examination of the design of the item in question.  There is no information before me about the number of cases arising from the same nature of item save that I was told this is the first known appeal case, I anticipate occurrence of similar cases will be sparse.

20.In all the circumstances, I do not consider the decision involved a question of law of great and general importance.

CONCLUSION

21.I therefore refuse to certify the question as stated in paragraph 6 above as being a point of law of great and general importance involved in the decision.

Miss CHAN Sui Tak, Monica, SPP (Ag) of Department of Justice, for the respondent

Mr FAN Hoi Kit, Alex, instructed by Wat & Co., for the appellant