SIN KAM WAH AND ANOTHER v. HKSAR

FAMC No. 29 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 29 OF 2004 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 520 OF 2003) 

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

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Mr Justice Bokhary PJ:

1. The 2^nd applicant has wisely abandoned her application for leave to appeal to the Court of Final Appeal against sentence.  That leaves the matter of conviction.

2.  There is a proper issue over whether it has indeed been found as a fact that the 1^st applicant knew that the 2^nd applicant exercised control, direction or influence over the prostitutes in question.  And if that has indeed been found, then it would be reasonably arguable that there has been substantial and grave injustice to the 1^st applicant in the making of such finding.  So we arrive at, as far as he is concerned, a question of law of great and general importance, namely whether a police officer commits the crime of misconduct in public office simply when someone provides him with the services, free of charge to him, of prostitutes, and he accepts.

3. Flowing from that, there arises in relation to the offering charges against the 2^nd applicant the question of whether, in such circumstances, the provider commits the offence of offering an advantage to a government servant.  This, too, is a question of law of great and general importance.

4. We certify the involvement of both those questions.  And the points arising under them being reasonably arguable, we grant, on that basis, the 1^st applicant leave to appeal against his convictions and the 2^nd applicant leave to appeal against her convictions on the offering charges.

5. As far as her convictions on the controlling, directing or influencing charges are concerned, these appear so intimately connected with the other convictions that leave to appeal against these convictions is also granted.

6. Our grant of leave to appeal is based primarily on the point of law of great and general importance ground but also on the substantial and grave injustice ground as that, too, may arise.

7. The way in which we have expressed ourselves is not meant to limit the arguments which the appellants and the prosecution may properly advance in the appeal itself for the purposes of overturning or upholding any of these convictions.

8. We thank counsel for their assistance.

[The applicants were granted bail pending appeal]