HKSAR v. TSE KWONG WANG

FAMC No. 14 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 14 OF 1998 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA No. 68 OF 1997)

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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. This is an application for leave to appeal to the Court of Final Appeal. It is made out of time and therefore requires an extension of time. The applicant wishes to bring such an appeal in order to challenge his conviction for common assault. That conviction arose out of an incident which occurred in Wanchai on 11 July 1996. The applicant was a taxi driver. A traffic warden issued him with a fixed penalty ticket for illegal parking. He disputed the justification for her doing that.

2. According to her, this is what happened. He followed her shouting abuse at her. There came a time when they were standing in close proximity to each other. He was holding a bunch of keys in his left hand. She was holding her ticket book in her right hand. She felt a blow on the back of her right hand, so that she dropped her ticket book and stepped backwards. She had not seen the blow. But there was nobody other than the applicant physically in a position to strike her. The prosecution's case was that the only reasonable inference was that he had struck her with that bunch of keys.

3. According to him, however, he had merely tried to reason with her. But her reaction, he said, was to drop her ticket book deliberately and make a false allegation of assault against him.

4. A police officer attended the scene. It was an admitted fact at the trial that this officer witnessed redness on the back of the traffic warden's right hand.

5. The trial took place before J. Brennan Esq sitting in the Eastern Magistracy on 5 December 1996. After listening to those rival accounts, the Magistrate was satisfied beyond reasonable doubt that the truth had come from the traffic warden rather than the applicant. The Magistrate felt sure that the applicant had assaulted the traffic warden as charged. So he convicted the applicant accordingly.

6. The matter went on appeal to the High Court. It came on for hearing on 15 April 1997 before Mayo JA sitting as an additional judge of the High Court. Mayo JA saw no ground for interfering with the Magistrate's view of the facts. So he dismissed the appeal accordingly.

7. In seeking leave to appeal to the Court of Final Appeal, the applicant has not identified any point of law of great and general importance. So he cannot bring himself within the first limb of s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484. That is the provision dealing with leave to appeal to the Court of Final Appeal in criminal cases.

8. So the question becomes whether the applicant can bring himself within the second limb of s.32(2). In other words, has he made out a reasonably arguable case to the effect that substantial and grave injustice has been done?

9. As this Committee said in Kwok Hung Fung v. HKSAR [1998] 1 HKLRD 334 at p.336:

"The Court of Final Appeal does not sit as a court of criminal appeal in the ordinary way. In the administration of criminal justice, its primary role is the one under the first limb of s.32(2). And that is to resolve real controversy on points of law of great and general importance. The second limb is a residual safeguard designed for those rare and exceptional cases in which there is a real danger of something so seriously wrong that justice demands an inquiry by way of a final criminal appeal despite the absence of any real controversy on any point of law of great and general importance."

10. We have considered everything put forward by the applicant. Having done so, we find ourselves unable to regard this case as even coming close to being a rare and exceptional case of that kind. All of the applicant's points go to the factual issues. None of them enable an appellate court to disturb the factual findings of the Magistrate who received all the evidence at first-hand.

11. There is therefore no proper basis on which leave to appeal to the Court of Final Appeal can be given. That means that no useful purpose would be served by granting an extension of time.

12. In the result, this application is dismissed.