ANTONIUS MARIUS JACOBUS VAN HUIJSTEE v. HKSAR

FAMC No. 66 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 66 OF 2010 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 459 OF 2010)

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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.  We grant leave to appeal to the Court of Final Appeal under the “substantial and grave injustice” limb of s.32(2) of the Court’s statute. Without limiting the scope of the appeal, we would indicate that there are at least two bases on which it is reasonably arguable that there has been a departure from accepted norms such as to constitute a substantial and grave injustice. First, with a view to resolving the discrepancy between, on the one hand, the taxi driver’s evidence as to the banknotes which he lost and, on the other hand, the banknotes which were found in the applicant’s possession, the appeal judge spoke of, among other things, a transfer of banknotes between the applicant and his colleague who had been in the taxi with him. But it had not been put to the colleague in cross-examination by prosecuting counsel that he had been party to such a transfer. Secondly, the appeal judge’s approach appears to have reversed the burden of proof.

2.  Mr Kevin Zervos SC for the respondent very sensibly did not oppose the grant of leave to appeal in this case.  He added that the appeal might provide an occasion for considering whether or not something more can be said as to the nature of an appeal under s.113 of the Magistrates Ordinance, Cap.227.  Nevertheless, if upon reflection the prosecution decides not to oppose the appeal, it may be appropriate to dispose of the appeal without an oral hearing.  The procedure would then be the one laid down in Mok Kin Kau v. HKSAR (2008) 11 HKCFAR 1.