SECRETARY FOR JUSTICE v. TAM KIT-I

HCMP 54/2011

[2022] HKCFI 3658

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 54 OF 2011

_________________

_________________

_________________

____________________

D E C I S I O N

____________________

1.  This is an application by the Respondent, and supported by the Applicant, for an order certifying that a point of law of great and general importance is involved in respect of a Decision of this Court dated 2 December 2019. The Court of Final Appeal under FAMC 13/2022 has already granted leave to appeal the following questions:

(a)  “What on the true construction of the provisions of the Organized and Serious Crimes Ordinance, Cap 455 (“OSCO”) referred to herein, was the consequence of the Judge’s decision in HCMP 1207/2014 (dated 10 August 2016) not to make a confiscation order on the basis of her conclusion that the Respondent had not ‘absconded’ within the meaning of s8(1)(a)(ii)(B)?  In particular, did this in law result in the application for a confiscation order being ‘concluded’ within the meaning of s2(16A)(a) with the consequence that the restraint order dated 30 March 2021 was discharged by operation of s15(5)(b)?”

(b)“Where a person against whom proceedings under OSCO have been instituted seeks to bring an appeal against a Judge’s refusal to discharge a restraint order, is that appeal criminal or civil in nature for jurisdictional and procedural purposes?”

2.  The Appeal Committee under FAMC 13/2022 and FAMV 367/2022 on an application for leave to appeal from the Court of Appeal under CACV 103/2022, granted leave in respect of the above two questions.  In doing so, the Appeal Committee took the view under (b) above, that it is reasonably arguable that the Respondent’s appeal against this Court’s refusal to discharge the restraint order is criminal in nature.  If that were to be the case, the Judgment of the Court of Appeal exercising its civil jurisdiction would be a nullity.  This application seeks to allow the Respondent to take the necessary steps to be heard by the Court of Final Appeal should that be their finding.  Accordingly, I grant leave to issue a certificate under s32(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) in relation to the two questions raised.