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Kwok Hung Fung v Hksar

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date23 February 1998
Year1998
Citation(1997-1998) 1 HKCFAR 78; [1998] 1 HKLRD 334
Judgement NumberFAMC13/1997
Subject MatterMiscellaneous Proceedings (Criminal)
CourtCourt of Final Appeal (Hong Kong)
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

-------------------------

D E T E R M I N A T I O N

-------------------------

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.

7. No mystery need surround the choice of the formula "shown that substantial and grave injustice has been done" in s.32(2). It is readily to be inferred that it was taken from the decision of the Privy Council in Re Dillet (1887) 12 App Cas 459. Mr Dillet was a barrister who challenged his conviction for perjury and a consequential order striking him off the roll of practitioners. Delivering their Lordships' advice in that case, Lord Watson said (at p.467) that

"the rule has been repeatedly laid down, and has been invariably followed, that Her Majesty will not review or interfere with the course of criminal proceedings, unless it is shewn that, by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done."

That test (which was reiterated by the Privy Council in the court-martial case of Kamarul Azman v. Wan Abdul Majid [1983] 1 WLR 578 at pp 583H-584A) is the one by which appeals are decided on the merits. It was laid down by Lord Watson in the course of delivering their Lordships' advice to Her Majesty that Mr Dillet's appeal should be allowed so as to quash his conviction and restore him to the rolls.

8. At the leave stage, however, their Lordships' advice to Her Majesty was delivered by Lord Blackburn. And the basis on which Her Majesty was advised that Mr Dillet should have leave to appeal is that there was "ground for inquiry" (p.465) so that he "ought to be permitted on appeal to shew, if he can, that ... his conviction was obtained in so unsatisfactory a manner that the conviction alone ought not to be conclusive as a ground for striking him off the rolls" (p.466).

9. Therefore what an applicant has to do in order to obtain leave to bring a final appeal in a criminal case on the ground that substantial and grave injustice has been done is to make out a reasonably arguable case to that effect.

10. But even that more modest objective, it must be...

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