Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Hksar v Lo Yuk Fai

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date02 July 2015
Year2015
Judgement NumberHCMA672/2014
Subject MatterMagistracy Appeal
CourtHigh Court (Hong Kong)
HCMA672A/2014 HKSAR v. LO YUK FAI

HCMA 672/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 672 OF 2014

(ON APPEAL FROM KTCC 2611/2014)

____________

IN THE MATTER of an application for Certificate to appeal to the Court of Final Appeal by the Appellant pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 of the Laws of Hong Kong

AND

IN THE MATTER of the Decision of the Court of First Instance made on 21 April 2015 (“the Decision”) and Reasons for Judgment handed down on 15 May 2015 in Magistracy Appeal No. 672 of 2014 (“the Judgment”)

____________

BETWEEN
HKSAR Respondent
and
LO YUK FAI Appellant

____________

Before: Hon A Wong J in Court
Date of Hearing: 29 June 2015
Date of Decision: 2 July 2015

________________

DECISION

________________

1. This is an application for a certificate that the decision in the case involved a point of law of great and general importance.

2. Despite the trial, the appeal hearing and this application hearing were all conducted in Chinese, I prepare the Decision in English as parties were in consensus that it is convenient and desirable to do so.

BACKGROUND

3. On 30 October 2014, the Appellant was found guilty by a Magistrate after trial of two charges of Possession of a prohibited weapon[1] and was sentenced to 3 months’ imprisonment for each charge, to run concurrently.

4. He appealed against both the conviction and sentences. I dismissed the appeal on conviction but allowed the appeal on sentences.

THE APPLICATION

5. By a Notice of Motion dated 26 May 2015, the Appellant applied under section 32(2) of the Hong Kong Court of Final Appeal Ordinance[2]for a certificate that a point of law of great and general importance was involved in my decision.

THE POINT OF LAW

6. The point of law which the Appellant asked this Court to certify is :

“Whether ‘any bladed or pointed weapon designed to be used in a fashion whereby the handle is held in a clenched fist and the blade or point protrudes between the fingers of the fist’ referred to in the Schedule of the Weapons Ordinance (Cap. 217) includes a weapon described as follows:

(1) A bladed or pointed weapon designed to be used in a fashion whereby the handle is held in a clenched fist;

(2) Part of the handle of the weapon protrudes between the fingers of the fist;

(3) The blade or point is additionally affixed onto the said part of the handle protruding between the fingers of the fist; and

(4) No part of the blade or point is in the clenched fist.”[3]

SUBMISSION

7. Counsel for the Appellant, Mr Alex Fan, submitted that the definition of prohibited weapons as provided in the Schedule of the Weapons Ordinance is so wide and obscure that possession of any object apparently and technically satisfying the definition would attract criminal liability. There is a strong public interest for the Court of Final Appeal to clarify the definition of prohibited weapon so that the public will not commit an offence out of ignorance of the law. It would also be for the benefit of law enforcing officers if the exact coverage of the prohibited items can be clarified.

8. Mr Fan also submitted that to impose criminal liability upon possession of an object of private ownership is plainly a restriction on and an infringement of private property right, being a fundamental human right in a civil society.

9. He also pointed out that there has been no reported judgment in relation to the offence.

10. The submission of Miss CHAN Sui Tak, Monica, SPP (Ag), Counsel for the Respondent, boils down to the following points :

(a) The application was lodged after the expiry date as set out in Practice Directions 2.2 and 4.3;

(b) As the decision involved purely finding of facts, no point of law of great and general importance was involved in the decision of the present case;

(c) In any case, the point is not reasonably arguable[4];

(d) The points of restriction on and an infringement of private property right had not been raised in either the trial or the appeal.

11. In reply, Mr Fan made the following submission :

(1)There is no question of “out of time” in the context of an application for certificate. Practice Direction 4.3 applies to appeals heard by the Court of Appeal only. The Hong Kong Court of Final Appeal Ordinance does not prescribe a time limit for the application for a certificate. The overall time limit for an application for leave to appeal to the Court of Final Appeal is 28 days from the date of the decision of the Court of First Instance[5]. The stipulation of “immediately after” in Practice Direction 2.2 should be read in context. Paragraph 6 in the same Practice Direction stipulates that “a failure to make the application in accordance with these directions may make it difficult or impossible for the parties to comply with the time limit for applications for leave to appeal to the Court of Final Appeal”.

(2)The decision involved a point of law, as what a word or phrase means in its context, in other words its legal meaning, is a question of statutory interpretation, and therefore is a question of law. The decision involved construction...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT