HKSAR v. WONG HUNG KI AND ANOTHER

FAMC No. 43 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 43 OF 2010 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 424 OF 2008)

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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.  This is an application by the prosecution for leave to appeal out of time to the Court of Final Appeal. If there is merit in the application, it would be right to extend time. Although the Court of Appeal gave its decision on 28 January 2010, they did not give their reasons until 11 May 2010. And the application for leave was taken out within 28 days of the handing down of those reasons, which the prosecution reasonably required time to consider.

2.  The complaints which the prosecution makes against the Court of Appeal’s decision go essentially to three matters.  Of these, the first is how the Court of Appeal should approach findings of fact made by a District Court judge in a criminal case.  The second is in effect the line separating communications covered by legal professional privilege and confidentiality from communications that are not thus covered.  And the third is the proper approach to an application for a permanent stay of criminal proceedings.

3.  This case does not give rise to any controversy over the law on any of those matters.  So the prosecution, in seeking leave to appeal to the Court of Final Appeal, does not invoke the “point of law” limb of s.32(2) of the Court’s statute.  Instead the prosecution relies on – and only on – the “substantial and grave injustice” limb of that subsection.  To obtain leave thereunder, the prosecution must show that it is reasonably arguable that there has been to its advantage a departure from accepted norms so serious as to constitute a substantial and grave injustice.  Despite the skill with which this application has been argued on its behalf, we are not persuaded that the prosecution has done that in regard to any of the matters to which its complaints go.  This is not necessarily to say that we are disposed to associate ourselves with each and every criticism which the Court of Appeal appears to have levelled against the District Court judge or the officers of the Independent Commission Against Corruption involved.  The fate of this application does not depend on that.

4.  In the result, leave to appeal is refused.

[Argument on costs]

5.  The respondents ask for costs while the prosecution resists costs, resisting them on the basis that this application for leave, though unsuccessful was not bought frivolously or unreasonably.  We certainly agree that the application was not bought frivolously or unreasonably.  However, we see no reason why costs should not follow the event.  So we award the respondents costs.