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FAMC No. 58 of 2010
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 58 OF 2010 (CRIMINAL)
(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 211 OF 2009)
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Between:
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HONG KONG SPECIAL ADMINISTRATIVE REGION |
Applicant |
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- and - |
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CHU CHI WAH |
Respondent |
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Appeal Committee :
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Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ
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Date of Hearing :
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2 November 2010
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Date of Determination :
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2 November 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. The Court of Appeal quashed the respondent’s convictions. They refused a retrial. The prosecution now seeks leave to appeal out of time to the Court of Final Appeal against that refusal. They so apply under the “substantial and grave injustice” limb of s.32(2) of the Court’s statute. It is submitted on the prosecution’s behalf that the Court of Appeal had departed from accepted norms in failing to give sufficient weight to the factors in favour of a retrial and therefore failing to strike a proper balance between the factors for and against a retrial.
2. If this is otherwise an appropriate case in which to grant leave to appeal, such leave ought not to be withheld by reason of it being applied for out-of-time. Although a retrial was refused on 30 June 2010, it was not until 28 July 2010 that the reasons for the refusal were handed down. And the leave application was filed on 6 August 2010. So, is this otherwise an appropriate case for leave to appeal?
3. As it seems to us, the Court of Appeal did set out to balance the factors for or against a retrial. An exercise of discretion is involved. The Court of Final Appeal would not reverse that exercise of discretion merely because they lean in favour of an exercise of it the other way. They would not interfere with its exercise save for compelling cause. And in our view, it is not reasonably arguable that such cause exists. It would take something very special to make the Court of Final Appeal consider it appropriate to reverse an intermediate appellate court's grant of a retrial. And it would take something even more special to make the Court of Final Appeal consider it appropriate to reverse an intermediate appellate court’s refusal of a retrial.
4. In the result and despite the skill with which this application has been urged, leave to appeal to the Court of Final Appeal is refused.
[Application for costs by the respondent
which the applicant did not oppose]
5. It is dismissed with costs.
(Kemal Bokhary)
Permanent Judge |
(Patrick Chan)
Permanent Judge |
(RAV Ribeiro)
Permanent Judge |
Mr David Leung (of the Department of Justice) for the applicant
Mr Richard Wong and Mr Robin Yue (instructed by Messrs Ng, Lie, Lai & Chan) for the respondent
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