Kwok Hung Fung v Hksar

Cited as:(1997-1998) 1 HKCFAR 78; [1998] 1 HKLRD 334
Court:Court of Final Appeal (Hong Kong)
Judgement Number:FAMC13/1997
Judgment Date:23 Feb 1998
FAMC000013/1997 KWOK HUNG FUNG v. HKSAR

FAMC000013/1997

FAMC No. 13 of 1997

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 13 OF 1997 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA No. 289 OF 1997)

_____________________

BETWEEN

KWOK HUNG FUNG

Applicant

AND

HONG KONG SPECIAL ADMINISTRATIVE REGION

Respondent

_____________________

Appeal Committee : Mr Justice Litton PJ, Mr Justice Ching PJ and Mr Justice Bokhary PJ

Date of Hearing: 23 February 1998

Date of Determination: 23 February 1998

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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. This is the Appeal Committee's determination.

2. We have before us an application - made out of time and therefore requiring an extension of time - for leave to appeal to the Court of Final Appeal against a conviction for robbery.

3. That conviction was in the Magistrate's Court on 27 February 1997. There was an appeal to the High Court. That appeal was dismissed by that court on 27 June 1997. The prescribed time for applying for leave to bring a final appeal was within 28 days of the High Court's decision. But it was not until almost half a year later, on 17 December 1997, that the applicant's application for such leave was filed. That is why he requires an extension of time.

4. Dealing with criminal cases, s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that:

"Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the High Court, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done."

5. The applicant does not suggest that any point of law of great and general importance is involved here. Instead he invokes the second basis for leave to bring a final appeal in a criminal case. That is the basis provided for by the "substantial and grave injustice" limb of s.32(2).

6. That limb could do with a word of explanation. Read out of context, the words "Leave to appeal shall not be granted unless ... it is shown that substantial and grave injustice has been done" are liable to be misunderstood. For so read, they might be thought to mean that substantial and grave injustice has to be shown in the sense of being demonstrated before leave to appeal can be granted. But that would be palpably absurd. For if substantial and grave injustice were demonstrated, that would be a case for allowing an appeal and not merely granting leave to pursue one.

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