HKSAR v. YIP SIU MAN

HCMA 34/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 34 OF 2001

(ON APPEAL FROM ESCC 3981 of 2000)

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J U D G M E N T

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1. This is an application brought under the Court of Final Appeal Ordinance by the applicant before me, for an order certifying a point of law of great and general importance.

2. The first matter for me to consider is the applicant's application for an adjournment to give him the opportunity to seek legal assistance through the Director of Legal Aid. The application was made after the applicant had been given the opportunity to address the court in support of his application, and the response thereto, in opposition, made by counsel for and on behalf of the respondent. He has not provided, in my view, sufficient reasons for me to grant his application so late in the proceedings before me and that is refused.

3. I shall now deal with the application itself. This derives from the applicant having been convicted after trial by a magistrate in November 2000 on one count of assault occasioning actual bodily harm. The following month, he was sentenced to four months' imprisonment.

4. The applicant appealed both conviction and sentence, and the matter came to be heard before me in June 2001. After hearing submissions from both sides, I found no grounds for interfering with the magistrate's conviction or sentence, and both appeals were dismissed.

5. Now it is by Notice of Motion filed on 24 November of this year, more than two years later, the applicant has given notice of an intention to appeal to the Court of Final Appeal by inviting an order certifying that a point of law of great and general importance is involved, concerning the appeal that was dealt with by me in June of 2001.

6. It is claimed within the body of the Notice of Motion that at the time I dealt with the appeal as a Deputy Judge of the Court of First Instance, my appointment thereto was irregular. And lacking the status of a Deputy High Court Judge, my resultant ruling was invalid. The application has been made as late in the day as it has been because in the supporting affidavit, the applicant says he was not aware of the irregularity giving rise to this application until he read about it in the mass media recently.

7. My appointment to the Court of First Instance Bench derives from the fact that I am a duly appointed District Court Judge, having been appointed to that office by the Chief Executive of the HKSAR. By virtue of the High Court Ordinance, the Chief Justice from time to time has the right to appoint judges of the District Court to sit as Deputy Judges of the High Court. In or before the year 2001, I was so appointed by the Chief Justice and it was in exercise of that appointment that I was sitting on the Bench on 15 June 2001 to deal with the applicant's appeal.

8. There is nothing irregular about that appointment and thus nothing irregular about my ruling in dismissing his appeals against conviction and sentence. This application is dismissed. (Leave having been granted to bring it out of time.)