HKSAR v. LAU TAT KEUNG MILKY

CACC 4/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 4 OF 1999

(ON APPEAL FROM HCCC 132 OF 1998)

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

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Leong, J.A. (giving the determination of the Court):

1. This is an application under s.32(2) of the Hong Kong Court of Final Appeal Ordinance for a certificate that there is involved in the decision of this court given on 9th September 1999, a point of law of great and general importance and/or that the applicant has been occasioned a substantial and grave injustice.

2. The applicant in his notice of motion is relying on both the point of law limb and the substantial grave injustice limb of the section.

3. The Court of Final Appeal has held in Zeng Liang Xin v. HKSAR FAMC No. 1 of 1997 that certification by the Court of Appeal only relates to the point of law limb and where the applicant wishes to rely on the substantial injustice limb, there is no question of certification by the lower court. The proper procedure is where the applicant wishes to rely on both limbs, he should apply to the lower court for certificate for the point of law limb and if granted, he should apply to the Court of Final Appeal for leave on the basis of the certificate and raise the substantial and grave injustice limb. The present application for certificate on both limbs is misconceived.

4. Paragraph 3 of the practice direction provides that application for a certificate to the Court of Appeal or Court of First Instance involving a point of law of great and general importance should be made immediately after the judgement is given for which the appeal is to be brought. The applicant's notice of motion is dated 1st November 1999. The application should have been made on 9th December 1999 immediately after this court had delivered its judgement. No reason has been advanced for not complying with the practice direction. Even with the extension of time, the time for application for leave to the Court of Final Appeal will now be out of time. In HKSAR v. Choi Wing-man [1992] 2 HKC 382, this court made it clear that the requirements of the practice directions are there to comply with and as Rogers, J.A. in that case said if they are not observed and there is no adequate explanation this court will not entertain those applications.

5. In any case the present application does not identify the point of law involved in the court's decision. The matters raised involved no point of law of great and general importance is involved in the decision for which a certificate should be granted. The application is therefore refused.