Soong Roong-sheng v. HKSAR

FAMC No. 20 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 20 OF 2000 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 457 OF 2000)

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DETERMINATION

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Mr Justice Bokhary PJ:

1. The questions of law which we are asked to certify read as follows:

"(1) In the drawing of an inference upon which to base a conviction, whether or not a trial Magistrate was duty bound to consider and determine an issue of fact which was not specifically raised during the trial but was an essential issue to be determined in order that such inference may be held to be the only irresistible inference; and

(2) Whether or not an Appellant court, in order to uphold a conviction as being safe and satisfactory, was duty bound to consider and determine an essential issue of fact where such issue was neither specifically raised during trial nor considered by the trial Magistrate in coming to his decision to convict but raised only on appeal."

In the course of the application, counsel for the applicant said that the word "essential" might usefully be replaced by the expression "essential or relevant". What is put forward as an essential or relevant issue is whether the applicant was no worse than merely incompetent or negligent. It can be seen that the questions of law which we are asked to certify presuppose that the issue of competence or negligence was essential even though it was not raised. In circumstances such as these, such an issue would not be essential unless it was raised. But it was not raised. The questions of law which we are asked to certify are therefore circular. An issue may have the potential for being relevant if raised but nevertheless be irrelevant having regard to the way in which the case was fought. That is the present situation. We refuse to certify the involvement of any point of law, and we refuse to grant leave to appeal to the Court of Final Appeal. The application is dismissed.