HKSAR v. STEPHEN DARYL BARNES

HCMA124/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.124 OF 2000

(ON APPEAL FROM SPS NOS.2285-7 OF 1999)

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J U D G M E N T

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1. This is an application for a certificate for leave to appeal to the Court of Final Appeal. The application is brought on the basis that there is a reasonably arguable ground of appeal, being a requirement set out in Lee Kin Pong v. Hong Kong Special Administration Region, FAMC11 of 1997 on an application for leave to appeal, but the onus persuading me that the application should be granted being with the applicant, as is held by Woo Lai Wing v. Hong Kong Special Administration Region, FAMC10 of 1997 on application for leave to appeal.

2. The applicant was convicted of three charges, contrary to section 46(1) of the Legal Practitioner's Ordinance, and the basis of his appeal was that the word "wilfully" contained in that section did not, as a matter of mens rea, import recklessness. The law defining "wilful" was set out in the majority judgment of R v. Sheppard [1981] AC 394 (HL), and that judgment was followed when the appeal was dismissed in respect of each of the three charges. The applicant argues that there is some equivocation in that judgment and that the matter need to be fully argued by the Court of Final Appeal.

3. Further, Mr Bedford before me refers me to the case of The Chief Constable of Avon and Somerset v. Shimmen [1984] Cr.App.R.7, which considered, among other propositions, the circumstance where a person, who is aware of the kind of risks which would attend his act if he does not take precautions, takes precautions which are intended and expected to eliminate the risk, but the precautions are plainly, and are plainly to him, inadequate. The court in Shimmen held that such recklessness was sufficient to make out the mens rea of the offence.

4. I am satisfied, having heard Mr Bedford and having considered those two cases - both of which having been heard in 1981 and there having been no law or no precedent since which distinguishes those authorities or materially changes the law that they are both persuasive on set out the law as it stands - that this appeal is not reasonably arguable.

5. Further, this is a narrow point restricted to section 46(1) of the Legal Practitioner's Ordinance and I do not consider it as a matter of great and general importance for the appeal to be heard by the Court of Final Appeal. This application for leave is refused.