HKSAR v. LAM KWONG WAI AND ANOTHER

FAMC No. 11 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 11 OF 2005  (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 213 OF 2003)

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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 Court of Appeal has certified the involvement of a point of law of great and general importance.  That point is contained in a question certified by the Court of Appeal.  And the prosecution wishes to argue within that question that the statutory provisions concerned are constitutional even if they impose a legal burden on a defendant or, what is easier to argue, that they impose an evidential burden which can be arrived at by way of construction and which would be constitutional. 

2.  Mr Clive Grossman SC for the second respondent offers no argument in opposition to the grant of leave to appeal to the Court of Final Appeal on the “point of law of great and general importance” limb.  And the first respondent, who is in person at the moment, is content to adopt Mr Grossman’s submissions. 

3.  The prosecution also seeks leave to appeal on the “substantial and grave injustice” limb.   It is felt by the prosecution that if the certified question is answered to the effect that the provisions concerned create a constitutional evidential burden, that may or may not give rise to difficulties in regard to the reinstatement of the convictions.  And prosecution suggests that such difficulty would be removed if there were leave on the “substantial and grave injustice” limb, too.  Mr Grossman contends that the “substantial and grave injustice” limb is never available to the prosecution, alternatively, that leave ought not to be granted to the prosecution on that limb in the circumstances of the present case.  There are dicta in this Court to the effect that the “substantial and grave injustice” limb is available to the prosecution, always remembering of course that the prosecution cannot appeal against an acquittal at trial but only against the quashing of a conviction upon intermediate appeal. 

4.  In our view, it would be appropriate to grant leave in the present case on the “substantial and grave injustice” limb as well.  This does not preclude the respondents from arguing before the Court that the “substantial and grave injustice” limb does not avail the prosecution after all.  And it certainly does not prevent the respondents from arguing before the Court that even if that limb does avail the prosecution, these convictions ought not to be restored whatever the position is on the “point of law” aspect of the case.  In those circumstances, leave to appeal is granted on both limbs.

5.  It was mentioned to us at the hearing ¾ and even before then by way of communications to the Registrar ¾ that there is some question of whether this appeal ought to be heard at the same time as a possible appeal from another decision of the Court of Appeal in a case in which that court has not yet given judgment.  Having regard to the issues in that case, it may well be that any appeal to this Court in that case would conveniently be heard at the same time as the present appeal.  But it is necessary to wait and see how things develop before one can decide whether or not such a course would prove possible and convenient.  So the position should be kept under observation before a suggestion can be made to those involved in listing.  If necessary, the matter can be referred to a single judge of this Court.  At this stage no direction should be made in regard to hearing the appeals together.