HKSAR v. KIT CHOY DEVELOPMENT LTD.

HCMA 62/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 62 OF 2005

(ON APPEAL FROM ESS 17127/2004)

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R U L I N G

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1.  The Applicant company was convicted, after trial, in the magistracy.  It was represented in those proceedings by Choy Bing-wing.  The summons alleged failure, without reasonable excuse, to comply with a fire safety improvement direction – the installation of sprinklers in commercial premises.  The conviction was on 3 January 2005 resulting in the imposition of a fine of $2,800.00 and an order to pay costs in the sum of $1,000.00.

2.  The Applicant appealed that conviction.  The Notice of Appeal asserts that the Magistrate was bias (sic) in addition to the usual catch-all of there being no sufficient evidence.  The appeal judgment in this matter summarises the matters raised on appeal  thus:

“5.      Prior to the issue of the notice Mr Choy argued with the fire services officers that the premises were too small to warrant the installation of a sprinkler system in the building and that the Fire Services Department was in error and ultra vires the legislation giving rise to the issue of fire safety directions because of that unreasonableness.

6.       When the matter came before me the appellant also argued that the magistrate was biased in that there was no reason to convict and that the appellant company was not guilty of the offence.  Mr Choy also argued on behalf of the appellant that in the course of argument the magistrate was referred to HKSAR v. The Incorporated Owners of No. 10 Bonham Strand and Another, HCMA 239/2004.  In that case it was held by McMahon J that an allegation that the directions issued by the Director of Fire Services in circumstances such as these was not a defence available to a defendant in a prosecution for failing to comply with those directions.  The appellants in that case applied for leave to appeal to the Hong Kong Court of Final Appeal.  Their applications were dismissed by the Appeal Committee…”

3.  The appeal was heard by Mr Justice Gall on four days during 2005:  On 23 February, 18 March and 11 July the Applicant again was represented by Mr Choy.  On 23 November it was represented further by one Brumen Li.  He applied for an adjournment on the basis that Mr Choy was “in Macau, meeting important people”.  That application was refused.  The Applicant then had no further submissions to make on the appeal.  Those facts hardly accord with the statement made this morning that Mr Justice Gall “would not listen” to the Applicant’s representatives. 

4.  Judgment was delivered on 7 December 2005.  On that date the Applicant was again represented by Brumen Li, Mr Choy having been imprisoned on 5 December 2005 for contempt of court in other proceedings.  See Secretary for Justice v Choy Bing-wing HCMP469/2003.  The chronology also runs counter to the claim made today that the appeal Judge did not wait for Mr Choy to get out of jail to make full submissions.

5.  The judgment was that the appeal be dismissed for the detailed reasons set out.  The Applicant was ordered to pay the Respondent’s costs of appeal and reference was made to the order for costs in the Magistracy, against which there had been no appeal.

6.  There is now before me an application which purports to seek a certificate under s. 32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, (“the Ordinance”) certifying that points of law of great and general importance arise from the appeal judgment.  They are said to be:

“Whether impossibility to comply can amount to a valid defence and/or valid ground as reasonable excuse to a criminal charge laid under s.5(7)(b) of Cap. 502 and whether an appellate judge can ignore completely such a matter without any address of the same in his judgment when it had been laid before him that prosecution counsel had admitted in the court below that full compliance was impossible and modification needed be made to render compliance possible.

Whether an appellate judge can order costs in particular to include costs in the court below in the absence of any formal application for costs made by prosecution and without full arguments on the question of costs from both sides.”

7.  There is no suggestion in the Notice of Motion that any relief relating to time is sought.  However, contrary to the Notice of Motion, the affirmation which has been filed by Mr Choy on behalf of the Applicant – and who represents it here today - asserts, in paragraph 1, that he makes

“... this affirmation to support an application for extension of time to apply for a certificate under section 32 of Cap. 484.”

and repeats, in paragraph 6,

“... I verily ask this court to grant an extension of time for the defendant company to apply for a certificate under section 32 of Cap. 484.  I verily believe that Justice and public interest strong (sic) call for the same.”

8.  This matter may be dealt with shortly.  Firstly, there is no power under section 32 of the Ordinance conferred on the Court of First Instance to grant extension of time.  There is a power under s. 33(2) for the Court of Final Appeal to do so.

9.  Secondly, an application for a certificate under section 32(2) – assuming that this is what was intended by this application – of necessity would have to be made immediately after judgment is given:  the court would otherwise be functus.  Practice Direction 2.2 recognises this.  On any realistic construction of section 32 of the Ordinance, that must be so.  That has not been done. 

10.  Practice Direction 4.3 provides that where a judgment is handed down, as it was in this case, an application for a certificate should be made within 7 days of the handing down of the judgment.  That practice direction, however, is only of application to appeals from the Court of Appeal, not from the Court of First Instance.

11.  The time within which an application to the Court of Final Appeal for leave is required, by section 33(1) of the Ordinance, to be made is 28 days.  This application has been made 148 days after the handing down of the judgment.  

12.  Thirdly, Mr Choy in his affirmation asserts, at paragraph 2,

“I was unable to act for...[the applicant]...at its later stage due to my detention in Lai Chi Kok Reception Centre...”

That is palpably untrue in respect of the hearing on the 23 November 2005.

13.  Insofar as that assertion is intended to relate to proceedings after delivery of the judgment on 5 December 2005, Mr Choy is a litigant with extensive experience in and familiarity with criminal procedure, including appellate matters.  In this connection reference may usefully be made, by way of example, to the proceedings in HKSAR v The Incorporated Owners of No 10 Bonham Strand and Another both in respect of the magistracy appeal under case number HCMA239/2004 and the application for leave to appeal to the Court of Final Appeal under case number FAMC41/2004 – where it was sought, by Mr Choy on behalf of the companies, to advance the identical point now espoused.

14.  The temporary inconvenience of his incarceration would not have affected adversely, in any way, his ability to proceed with an application for the requisite certificate.  Nor is there even the slightest attempt to explain the inaction of Brumen Li, who represented the Applicant on two occasions. 

15.  It follows that, even were the instant application to be generously construed as involving an application for extension of time, no case is made out for such relief.

16.  Fourthly, there was no appeal from the Magistrate’s decision as to costs.  It is plain from a sensible reading of the appeal judgment that all that was said in that connection was to refer to the costs order made by the Magistrate.  Insofar as the order relating to costs on appeal is concerned, this does not involve a point of law of great and general importance.  At the most optimistic level and assuming that an order were made without affording the Applicant an opportunity to make submissions on the point, it might be argued that such order in these circumstances amounted to a substantial and grave injustice:  that would not be a matter for me to certify but for the Court of Final Appeal.  See Zeng Liang Xin v. HKSAR [1997] HKLRD 1204.

17.  The application is refused.