HKSAR v. LAM YIU WA

HCMA1057/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1057 OF 1999

(ON APPEAL FROM SPCC 5419 OF 1999)

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J U D G M E N T

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1. The applicant was convicted after trial on 21 September 1999 of one charge of theft. He was fined a sum of $1,000 together with costs. He appealed against that conviction and on 31 March 2000, that appeal was heard and dismissed. By a Notice of Motion dated 18 April 2000, the applicant seeks an order certifying that there was involved in the decision a point of law of great and general importance. Section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap.484 states :-

"Leave to appeal should not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it shall in the substantial and grave injustice has been done."

2. The applicant has sought to proceed on the basis that involved in this matter is a point of law of great and general importance. The point of law relied upon by the applicant is that of the standard of proof; that an accused in a trial can only be convicted if his guilt is proved beyond reasonable doubt.

3. The basis upon which the applicant argues that a point of law of great and general importance is involved is purely factual. He relies upon three matters, each of which are matters of fact, and each of which were canvassed in the trial before the magistrate and in the appeal of that decision. None of them establish that a point of law in the judgment on the appeal is in issue and the Notice of Motion itself does not support any proposition relating to a matter of law and is based wholly upon an evaluation of the facts of the case.

4. Notwithstanding that the applicant does not rely upon the argument that a substantial and grave injustice has been done, I have considered both whether a point of law of great and general importance is involved and whether a substantial and grave injustice has been done in this matter.

5. I am satisfied that there is no point of law of great and general importance involved, nor that a substantial and grave injustice has been done, and the application for leave is refused.