HKSAR v. Law Yat Ting

FAMC No. 24 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 24 OF 2015 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 359 OF 2014)

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BETWEEN

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D E T E R M I N A T I O N

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Mr Justice Fok PJ:

1.This application for leave to appeal has been determined by the Appeal Committee on the papers without a hearing in the unusual procedural circumstances described below.

2.The applicant was convicted of tampering with a motor vehicle[1]. The only evidence was that the applicant had closed the passenger seat door of the vehicle in question.  His intermediate appeal to the Court of First Instance was dismissed.  He filed an application for leave to appeal to this Court on 22 April 2015.  One of the grounds raised in the application was that the mere act of closing the door of the vehicle could not support a charge of tampering with a motor vehicle (ground 1) but this was not an argument that had been advanced at trial or on intermediate appeal.

Rule 7 summons issued

3.Having considered the application, the Registrar issued a summons under Rule 7[2] on 7 May 2015.  The applicant was therefore required to show cause by written submissions why the application for leave should not be dismissed.[3]  In a typical case, the Appeal Committee will then consider the submissions filed and determine whether to direct an oral hearing of the leave application or make an order dismissing the application under Rule 7.

4.In this case, the applicant’s solicitors responded by way of letter to the Registrar dated 29 May 2015, referring to and enclosing a letter from them to the Department of Justice (“DOJ”) dated 22 May 2015 and a letter from the DOJ dated 28 May 2015 (responding to their 22 May 2015 letter) in which the Director of Public Prosecutions indicated he was prepared to consent to the application for leave to appeal on the limited basis that the mere act of closing the door of a vehicle could not support a charge of tampering with a motor vehicle.  The applicant’s solicitors invited the Appeal Committee to treat the letter of 22 May 2015 as the written submissions in response to the Rule 7 summons.

5.Since the DOJ’s position indicated that the application for leave to appeal would be conceded but because there were other grounds of appeal relied upon by the applicant, the Registrar wrote to the parties on 18 June 2015 inviting them to submit a joint letter and consent summons for approval[4] and to indicate their position on the application.

6.The DOJ replied on 23 June 2015 to state that the respondent was only prepared to consent to the leave application (with a view to consenting to the appeal) on the limited basis that the mere act of closing the vehicle’s door fell short of supporting a charge of tampering with a motor vehicle, and that this was sufficient to support the quashing of the conviction.  The respondent maintained that the other two grounds of appeal (grounds 2 and 3) were not reasonably arguable and that leave should not be granted in respect of them[5].

7.The applicant’s solicitors also replied on 23 June 2015 to contend that the other two departures from accepted norms (see FN5 above) were reasonably arguable.  However, in view of the respondent’s consent on the first ground, the letter stated: “the Applicant does not find it necessary for the purpose of disposing of the leave application to make further submissions on these other issues, unless the Appeal Committee thinks otherwise.”

Dealing with a Rule 7 summons where leave is consented to on one ground but the remaining grounds remain disputed

8.Procedurally, therefore, the following is the current state of play in relation to the application for leave to appeal:

(1) In view of the respondent’s indicated consent to leave to appeal, the Appeal Committee could (but is not bound to[6]) grant leave by consent on ground 1 and, since concession of leave by the respondent is with a view to conceding the appeal itself, the Appeal Committee could then make directions for the filing of a Joint Case as per §37(5) of Shum Wan Foon.

(2) However, this would not dispose of the entire leave application because the applicant has not abandoned the other two grounds on which leave is sought.

9.Since the Rule 7 summons is still current and has not been disposed of by order of the Appeal Committee, the Appeal Committee has to consider whether:

(1) to direct a hearing of the leave application to determine whether to grant leave to appeal on grounds 2 and 3 as well as ground 1; or

(2) to dispose of the leave application on the papers (i) so far as it relates to those other two grounds by way of order pursuant to the jurisdiction under Rule 7, and then (ii) by an order by consent granting leave to appeal on ground 1 (as per paragraph 8(1) above).

10.The Appeal Committee has not previously dealt with a Rule 7 summons in the manner set out in paragraph (9)(2) above but, in an appropriate case, we see no objection to such a bifurcated procedure involving a partial grant of leave on the papers (by consent) and a dismissal of the balance of the application for leave to appeal by way of the Rule 7 procedure.  Since the Appeal Committee has jurisdiction under Rule 7 to dispose of the entire application without a hearing, it follows logically that it has jurisdiction to dispose of part of an application on that basis.  It is relevant to note, in this context, the Appeal Committee’s treatment of civil leave applications in Hong Kong Island Development Ltd v World Food Fair Ltd[7]. Although that case itself is not directly in point, Ribeiro PJ there stressed the unfettered discretion of the Appeal Committee to give limited leave[8].

Disposition of the present application

11.Returning to the present case, the Appeal Committee is satisfied that the other two grounds on which the leave application is based do not disclose reasonable grounds for leave to appeal and, if they were the only grounds relied upon, we would not direct a hearing of the leave application but would instead make an order under Rule 7 dismissing the application for leave to appeal.

12.We are, however, satisfied that it is appropriate to grant leave to appeal by consent on ground 1 and to make directions for the filing of a Joint Case as per §37(5) of Shum Wan Foon.

13.Therefore, we make the following orders:

(1) By consent, the Appeal Committee:

(a) grants leave to appeal to the applicant on the papers on the ground that it is reasonably arguable substantial and grave injustice has been done on the basis that the conviction was based on an act which could not in law amount to tampering; and

(b) directs the filing of a Joint Case in respect of the appeal within 35 days;

(c) orders that the costs of the leave application be in the cause.

(2) In respect of the remaining grounds of appeal, the application for leave to appeal is dismissed under Rule 7.

14.The Appeal Committee reminds the parties of the need to agree any ancillary orders and costs consequent on the appeal being allowed: see Shum Wan Foon at §37(5).  Once this is done, if satisfied that the appeal should be allowed, the Court will proceed to deal with the appeal in accordance with the procedure in Shum Wan Foon at §37(7), i.e. on the papers and without an oral hearing.

Written submissions by Mr Eric TM Cheung (Solicitor Advocate, with HRA in criminal cases) and Ms Stephanie TY Lam, instructed by ONC Lawyers, for the Applicant

Written submissions by Mr Andrew Li SPP, of the Department of Justice, for the Respondent