HKSAR v. LO WAI YAN WINNIE

CACC 254/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 254 OF 2009

(ON APPEAL FROM DCCC NO. 610 OF 2008)

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BETWEEN

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JUDGMENT

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Hon. Yuen JA (giving the judgment of the Court):

1.  This is an application under s.32 (2) Hong Kong Court of Final Appeal Ordinance Cap. 484 that this court certify that the following points of law of great and general importance are involved in the decision of this court given on 3 December 2010:

(1) is the offence of maintenance formulated with sufficient precision to be an offence “prescribed by law” under Article 39 of the Basic Law of the Hong Kong Special Administrative Region, or “according to law” under Article 11(1) of the Hong Kong Bill of Rights Ordinance Cap.383?

(2) is the offence of maintenance inconsistent with the right to access to the courts under Article 35 of the Basic Law and therefore unconstitutional?      

2.  The second point of law was abandoned before this court although it was raised in the Notice of Appeal.  We have jurisdiction to certify a point of law not raised before us, and it is a matter for our discretion whether to certify (Chiu Wing Nam v HKSAR [2006] 9 HKCFAR 850 para. 16).  We consider, in view of the fact that the Applicant had abandoned the point before us and so this court had read and heard no arguments and consequently made no determination on this issue, that this court would not exercise its discretion to certify the second point.

3.  We have considered the parties’ respective submissions on the first point and we are satisfied that we should certify the first point of law as being of great and general importance.