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FAMC No. 44 of 2005
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 44 OF 2005 (CRIMINAL)
(ON APPLICATION FOR LEAVE TO APPEAL FROM
CACC NO. 94 OF 2001)
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Between:
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LAM YUK FAI STEVE |
Applicant |
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and |
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HONG KONG SPECIAL ADMINISTRATIVE REGION |
Respondent |
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Appeal Committee: Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Chan PJ
Date of Hearing: 14 November 2005
Date of Determination: 14 November 2005
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D E T E R M I N A T I O N
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Chief Justice Li :
1. We do not consider that the grounds advanced by the applicant for leave to appeal against the conviction on Count 2 are arguable. His application for leave to appeal on Count 2 is dismissed.
2. We are prepared to grant leave to appeal against his conviction on Count 3 on both the point of law limb and the substantial and grave injustice limb. And we extend time to appeal.
3. In relation to the point of law limb, we would certify the following points of law :
| (1) |
What is the meaning of the word “transfer” in s.42(2)(a)(ii) of the Immigration Ordinance, Cap.115? |
| (2) |
Under s.42(2)(a)(ii), who has the burden in relation to “without reasonable excuse” and depending on the answer, is that provision constitutional? |
4. On the appeal, as Mr WcWalters SC’s indicated, the Court would have to consider submissions on the application of the proviso.
(Andrew Li)
Chief Justice |
(Kemal Bokhary)
Permanent Judge |
(Patrick Chan)
Permanent Judge |
Mr Wong Hay-yiu (instructed by Messrs Johnny K.K. Leung & Co) for the applicant
Mr I.C. McWalters, SC and Mr Anthony Cheang (of the Department of Justice) for the respondent
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