WONG YIU WAH AND OTHERS v. HKSAR

FAMC No. 30 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 30 OF 2001 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 508 OF 2001)

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DETERMINATION

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Mr Justice Chan :

1. The 2nd to 4th applicants were each convicted by a magistrate of soliciting for an immoral purpose in a public place contrary to s.147 of the Crimes Ordinance, Cap. 200. Their appeal to the judge was dismissed. Having failed before the judge to obtain a certificate, they now apply for leave to appeal to the Court of Final Appeal under both limbs of s.32 of the Court of Final Appeal Ordinance.

2. The only point raised is whether the judge was wrong to hold that the club premises where the 2nd to 4th applicants were working at the time of their arrest was a public place within the meaning of s.117 of the Crimes Ordinance. Counsel for the applicants refers us to a number of statutory provisions and authorities including Hong Kong cases on the meaning of public place. In our view, whether a particular place, such as the club premises in the present case, falls within the ambit of a statutory definition of public place depends not only on the construction of the particular provision in question but also on the facts of that case. The judge having considered the relevant statutory provision and the evidence in this case held that "so long as the Club is open for business, inviting the public to enter, it is a place to which the public are permitted to have access and therefore a public place within the meaning of section 117 of the Crimes Ordinance". It cannot be said that the judge's conclusion based on his interpretation of s.117 of the Ordinance and his finding of facts was wrong. We are not satisfied that it is reasonably arguable that there is any question of law of great and general importance involved or that there is any substantial and grave injustice. We accordingly refuse to grant leave on both limbs.

3. The 1st applicant was charged with an offence under s.46 of the Dutiable Commodities Ordinance, Cap. 109, that is, being a licensee contravening a condition of the licence by permitting persons to occupy or use the premises to which the licence related for an immoral or illegal purpose. He was however convicted by the magistrate of another offence under s.46A of the same Ordinance. On appeal, the judge allowed his appeal and quashed his conviction. The 1st applicant submitted that he was entitled to costs but the judge refused his application. He now applies for leave to appeal under the substantial and grave injustice limb of s.32 of the Court of Final Appeal Ordinance.

4. Costs is of course a matter of discretion. The judge took the view that although he could not interfere with the magistrate's finding that the prosecution had not proved beyond reasonable doubt that the 1st applicant had knowledge of the activities inside the premises at the material time, the evidence was such that there was a case for him to answer and that an adverse inference could be drawn against him. It was only with reluctance that the judge allowed his appeal and refused a retrial. In refusing the 1st applicant costs, the judge was exercising a discretion which he clearly had upon the materials before him. As the Court of Final Appeal said in Tong Cun Lin v HKSAR [2000] 1 HKLRD 113 at 117, the strength of the case against a defendant and the circumstances under which he came to be acquitted are factors to be taken into consideration in deciding the question of costs.

5. In these circumstances, we do not think it is reasonably arguable that the judge had wrongly exercised his discretion or that the 1st applicant had suffered any substantial and grave injustice in not being awarded his costs. We therefore refuse his application.