YEUNG CHUN PONG AND OTHERS v. SECRETARY FOR JUSTICE

FAMC No. 101 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 101 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 102 OF 2005)

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1.  The two questions certified by the Court of Appeal amount essentially to the same question, which is whether the plea of autrefois acquit is available in committal proceedings.  This question was answered “No” by the Magistrate’s Court in committal proceedings but “Yes” by the High Court in judicial review proceedings challenging the answer given by the Magistrate’s Court.  Then the matter became academic as between the immediate parties upon the committal proceedings being brought to an end when the prosecution was transferred for trial in the District Court where the plea of autrefois acquit is undoubtedly available.

2.  Even after the question had thus become academic as between the immediate parties, the Court of Appeal took a policy decision to entertain the question for the sake of the general law.  And having done so, they reversed the High Court and answered the question “No”.  Then they certified the question for it to be finally determined by the Court of Final Appeal. 

3.  In the rare instances in which it is appropriate to do so for the sake of the general law, it is not unknown for the Court of Final Appeal to take on a case even after the question in it has become academic as between the immediate parties.  This was done in Prabakar’s case (2003) 6 HKCFAR 397.  And, in all the circumstances, we consider it appropriate for it to be done in this case too.  Accordingly we extend time and grant leave to appeal to the Court of Final Appeal.  It should of course be understood that neither this case nor that of Prabakar detract from the general rule, as a general rule, that the Court of Final Appeal will not hear cases that are academic between the immediate parties.