香港特別行政區 訴 陳偉強

On 14 August 2026, the Court of Appeal (Pang JA, Yeung JA and Chan J) refused to grant a certificate for leave to appeal to the Court of Final Appeal in HKSAR v Chan Wai Keung Lawrence (CACC 160/2021, [2026] HKCA 1409). The respondent was represented by Senior Assistant DPP Cheng Hoi Chung and Acting Senior Prosecutor Cheng Shu Fun.

The applicant, Mr Chan, was convicted after trial in the District Court of two counts of perverting the course of justice contrary to s.101I(1) of the Criminal Procedure Ordinance (Cap 221), and sentenced to a total of 2 years 8 months' imprisonment. His application for leave to appeal against conviction was refused by the Court of Appeal on 4 March 2026 ([2026] HKCA 367). He then sought a certificate that the decision involved a question of law of great general or public importance, so that he could apply to the CFA. The application was filed 19 days out of time under Practice Direction 4.3, though the respondent did not oppose on delay grounds.

The two questions of law formulated by the applicant asked whether, in a criminal appeal alleging counsel's flagrant incompetence, the threshold is "the defendant received an unfair trial" or "the result of the trial was unfair" (Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126, per Bokhary PJ at [13]), and whether the proviso to s.83 of Cap 221 can be invoked where defence counsel failed to put the defence case fully (Sankar v Trinidad & Tobago [1995] 1 WLR 194).

The Court's holding

The Court held that: (1) The test for flagrant incompetence is a single test: whether the accused received a fair trial. The proviso to s.83(1) is a separate, generally applicable saving provision. They are not "two thresholds" for flagrant incompetence, and Bokhary PJ's observations at [13] of Chong Ching Yuen, read with the preceding paragraphs, do not suggest otherwise (§§14-16). (2) The Court had never found Mr Wong, the applicant's trial counsel, to be flagrantly incompetent, whether directly, indirectly, or "implicitly". The conclusion was a holistic one based on the affidavits, exhibits, and P8A (the CCTV recording), and counsel's deficiencies did not undermine the fairness of the trial (§17).

The application for a certificate was refused.

For practitioners: when framing a flagrant incompetence argument, do not pitch it as a contest between "unfair trial" and "unfair result". The two concepts are distinct but the test is one. The proviso is a separate mechanism. And read the trial court's findings carefully before characterising them as a finding of incompetence.