RE CHIN KAM CHIU AND OTHERS

CACC 179/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 179 OF 2004

(ON APPEAL FROM HCCC NO. 158 of 2003)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1. On 22 July 2005 this Court handed down judgment in the appeals against conviction of these five appellants and dismissed their respective appeals.  Each appellant now seeks a certificate under section 32(2) of the Hong Kong of Final Appeal Ordinance, Cap. 484 that a point of law of great and general importance is involved in the decision of this Court.  The third, fourth and fifth appellants also ask this Court in their notice of motion to say that leave should be granted because there has been a substantial and grave injustice.

2. We have read the suggested points of great and general importance and do not propose to set them out here.  We perceive the points raised as ones that complain about this Court’s application of well-established principles.  So, for example, the question is raised:

“Can a conviction of a single count of conspiracy to defraud be sustained if there was a reasonable possibility that there was no agreement between the parties alleged to join the conspiracy as to the real object of the conspiracy with a co-conspirators may have had the separate and/or distinct objects for the agreement?”

3. We fail to see, with respect, how counsel can suggest that a question of that kind has to be put to the Court of Final Appeal.  The answer is obvious because the principle is well-established.

4. A question has been pressed orally before us this morning as to expert evidence, and its status when an expert seeks, or purports, to give his opinion on the ultimate question; and that is raised because of a comment made in broad terms by this Court at paragraph 124 of the judgment compared with a somewhat more close analysis in the decision in HKSAR v. Mo Sze Lung Thomson and another [2003] 2 HKC 356.  The essence of the point in the present case was that seen at paragraph 127 of the judgment, that the conclusion in any event was inevitable from the analysis given and in our judgment this does not justify certification of the suggested question to the Court of Final Appeal.  

5. It seems to us that the real complaint by the appellants in this case is that by reason of this Court’s decision to apply the proviso, this is a case in which substantial and grave injustice has been done.  That being so, the appropriate course for the appellants is to go to the Court of Final Appeal and seek leave under that limb of the subsection; a limb that is not for this Court’s certification or leave.

6. Accordingly, these applications are refused.