HKSAR v. NG MEI FA

CACC420/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 420 OF 2009

(ON APPEAL FROM DCCC 503 OF 2008)

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BETWEEN

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JUDGMENT

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Hon Lunn J (giving the Judgment of the Court):

1.  Following our refusal on 22 December 2010 of the application for leave to appeal to the Court of Final Appeal, pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, counsel for the respondent, who had opposed the application, applied for an order for costs, pursuant to section 13B of the Costs in Criminal Cases Ordinance, Cap. 492. At our invitation, the court has received written submissions from the parties.

2.  Section 13B provides a discretionary power in the court to award costs to the respondent in consequence of an unsuccessful application to this court for leave to appeal to the Court of Final Appeal, if this court is satisfied that the application is “without merit”. 

3.  As we stated in refusing the application, no point of law of great and general importance, as identified in the two questions posed on behalf of the applicant, was involved in our judgment dismissing the application for leave to appeal against conviction.  The law is clear and well-established.  In truth, the challenge made on behalf of the applicant is as to the application of the law and the real contention is that a “substantial and grave injustice” has been done to the applicant.  An application on the basis must be made to the Court of Final Appeal, not to this court (Zheng Liang Xin v HKSAR [1997] 1 HKLRD 1204 at 1211 F-1212E.)  Mr Jenkyn-Jones confirmed that an application under both limbs was filed on behalf of the applicant with the Registry of the Court of Final Appeal on 7 December 2010. 

4.  We are satisfied that the applicant was misguided in making the application to this court.  It was “without merit”.  In the result, we are satisfied that it is appropriate to order that the applicant pay the respondent the costs of the application for leave to appeal to the Court of Final Appeal, to be taxed if not agreed.  We so order.