Case Detail

FAMC No. 101 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 101 OF 2010 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 254 OF 2009)

_____________________

Between:

	LO WAI YAN	Applicant
	- and -
	HONG KONG SPECIAL ADMINISTRATIVE REGION	Respondent

_____________________

Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 3 May 2011

Date of Determination: 3 May 2011

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DETERMINATION

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Mr Justice Bokhary PJ :

1. This applicant, a solicitor of previous good character, seeks leave to appeal to the Court of Final Appeal against her conviction for conspiracy to commit the offence of maintenance and against the sentence of 15 months’ imprisonment passed on her upon that conviction. She seeks such leave under both “the point of law” limb and the “substantial and grave injustice” limb of s.32(2) of the Court’s statute.

2. The Court of Appeal has certified the involvement of a point of law of great and general importance. It is the point raised by the question of whether the definition of the offence of maintenance is sufficiently certain to comply with the “prescribed by law” clause of art.39 of the Basic Law and the “according to law” clause of art.11(1) of the Bill of Rights. This involves, first of all, determining what the definition of maintenance is. Then it involves determining whether that definition is sufficiently certain to be constitutional. If it is not, then the applicant’s conviction cannot stand. If it is, then the applicant’s conviction may or may not stand upon an application of the law to the facts found.

3. Whether the facts found against the applicant can themselves stand is what she wishes the Court of Final Appeal to consider under the “substantial and grave injustice” limb.

4. The certified point of law is worthy of the Court of Final Appeal’s attention. Leave to appeal in order to pursue it is granted. But such grant of leave does not extend to the point which the Court of Appeal refused to certify, being the one to the effect that any offence of maintenance would fall foul of the “right of access to the courts” clause of art.35 of the Basic Law. We do not consider that reasonably arguable. As for the “substantial and grave injustice” limb, we grant leave to appeal against conviction under that limb, too. We say nothing more in that regard. What remains is the matter of sentence. If the conviction is eventually upheld, it would remain to be seen on what basis that is done. A point of sentencing principle may arise. And the Court would be in a better position to do justice if the matter of sentence is also before it.

5. Leave to appeal against conviction and sentence is granted on the bases stated.

[Bail pending appeal was granted on the terms on which the applicant was granted bail pending the leave application.]

(Kemal Bokhary)
Permanent Judge

(Patrick Chan)
Permanent Judge

(RAV Ribeiro)
Permanent Judge

Mr Clive Grossman SC, Mr Lee Siu Him and Mr Chase Pun (instructed by Messrs Kong & Chang) for the applicant

Mr Kevin P Zervos SC and Mr Raymond Cheng (of the Department of Justice) for the respondent

FAMC No. 101 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 101 OF 2010 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 254 OF 2009)

_____________________

Between:

	LO WAI YAN	Applicant
	- and -
	HONG KONG SPECIAL ADMINISTRATIVE REGION	Respondent

_____________________

Coram: Mr Justice Bokhary PJ

Date of hearing: 7 April 2011

Date of decision: 7 April 2011

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D E C I S I O N

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Mr Justice Bokhary PJ :

1. There is power, which can be exercised by a single Permanent Judge, to grant bail pending the determination by the Appeal Committee of an application to it for leave to appeal to the Court of Final Appeal. This power is to be exercised only in rare and exceptional circumstances. It is difficult to envisage any situation in which bail pending an application for leave to appeal to the Court of Final Appeal would be granted unless (i) there are at least reasonable prospects of the Appeal Committee granting both leave to appeal to the Court of Final Appeal and bail pending such appeal and (ii) there is no real risk of absconding. Where those pre-conditions are met, it may be appropriate, depending on all the circumstances, to grant bail pending a leave application.

2. As to all of that, two points should be stressed. First, none of it pre-judges what the Appeal Committee might do or, if there is an appeal, what the Court of Final Appeal might do. Secondly, when bail is granted that is always on the basis that the defendant must be prepared for the possibility of having to return to custody after having been released.

3. The necessary pre-conditions were not met in Sher Ali Khan v. HKSAR (2006) 9 HKCFAR 791. So bail pending a leave application was refused in that case. Dizon v. HKSAR (2009) 12 HKCFAR 960 was highly unusual, being an application for leave to appeal against a refusal of bail pending trial. The application to a single Permanent Judge was dismissed, but there was a change of circumstances which rendered it appropriate for the trial court to reconsider the question of bail pending trial. In Van Weerdenberg v. HKSAR, FAMC No.44 of 2010, 17 August 2010, the necessary pre-conditions were met, and the circumstances were such that bail pending a leave application was appropriate. So such bail was granted. Mr Van Weerdenberg was permitted to travel abroad to visit his dying brother, and duly returned after doing so.

4. In the present case, the pre-conditions under which bail pending a leave application may be appropriate are met. And in all the circumstances, it appears to me that such bail is appropriate. I say no more about those circumstances than this. A point of law of great and general importance has been certified by the Court of Appeal to be involved in the applicant’s proposed appeal against conviction. The certified point concerns the “prescribed by law” clause of art.39 of the Basic Law and the “according to law” clause of art.11(1) of the Bill of Rights. It appears that applicant, who received a 15-month term of imprisonment, will be released on 2 August this year. That expected release date is to be viewed in the light of the fact that the leave application will not be heard until the 3rd of next month. And any appeal would of course take some time to bring on for hearing. It is appropriate to preserve the applicant’s position, as it was put in Chan Nai Ming v. HKSAR , FAMC No.61 of 2006, 3 January 2007 at para.6.

5. As for the terms on which I admit the applicant to bail pending her leave application, they are set out in the written material placed before me on the applicant’s behalf. The prosecution, while opposing bail, does not oppose those conditions in the event of bail being granted. I admit the applicant to bail on those conditions which will be properly drawn up in the appropriate form.

6. I conclude my decision in this matter by repeating what I said at the conclusion of my decision in Van Weerdenberg’s matter, which is this. That this meritorious application has succeeded should not be taken as encouragement to bring unmeritorious ones. The fate which unmeritorious ones can expect to meet is a refusal to accept filing or, if filing has been undeservedly obtained, a refusal to list for hearing. Any such refusal will be by the Registrar on the direction of a single Permanent Judge.

(Kemal Bokhary)
Permanent Judge

Mr Chase Pun and Mr Lee Siu Him (instructed by M/s Kong & Chang) for the applicant

Mr Edmond Lee (of the Department of Justice) for the respondent

LO WAI YAN v. HKSAR

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