HKSAR v. CHAN PETER

FAMC No. 35 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 35 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 102 OF 2004)

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DETERMINATION

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Mr Justice Bokhary PJ:

1.  The applicant, a practising solicitor, was convicted in the District Court of conspiring to defraud a company of which he was the legal adviser.  He was sentenced to five years’ imprisonment.  His conviction and sentence were affirmed by the Court of Appeal.  And he now seeks leave to appeal against conviction and sentence to the Court of Final Appeal on the “substantial and grave injustice” limb of s.32(2) of the Court’s statute.  His counsel has taken care to see that everything that can possibly be said on his behalf has been said.

2.  In regard to conviction, leave is sought on the basis of a complaint that the trial judge had failed to take into account some evidence favourable to the defence.  Having considered this complaint, we find no reasonably arguable case of any departure from accepted norms.  Accordingly leave to appeal against conviction is refused.

3.  Two complaints are made in regard to sentence.  One is to the effect that certain payments giving rise to civil liability only were taken into account against the applicant when assessing the extent of his criminality.  The other is that mitigating factors available to the applicant were not given sufficient weight.

4.  It would take rare and exceptional circumstances indeed to warrant leave to appeal to the Court of Final Appeal against sentence in the absence of some controversy over a sentencing principle of great and general importance.  No such circumstances are involved in this case.  Accordingly leave to appeal against sentence is also refused.