Ong Chun Ying v Hksar

CourtCourt of Final Appeal (Hong Kong)
Judgment Date25 Jun 2007
Citation(2007) 10 HKCFAR 318
Judgement NumberFACC8/2006
SubjectFinal Appeal (Criminal)
FACC000008/2006 ONG CHUN YING v. HKSAR

FACC No. 8 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2006 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 897 OF 2005)

_____________________

Between:

ONG CHUN YING

Appellant

and

HONG KONG SPECIAL ADMINISTRATIVE REGION

Respondent

_____________________

Court: Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Sir Noel Power NPJ and Sir Anthony Mason NPJ

Hearing and Decision: 21 June 2007

Handing Down of Reasons: 25 June 2007

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J U D G M E N T

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Mr Justice Bokhary PJ :

1. As is typical of a final appellate court, this Court’s primary role in the administration of criminal justice is to resolve real controversy on points of law of great and general importance. Absent any such controversy, it is rare and exceptional for a criminal case to proceed beyond the intermediate appellate court. It can only happen pursuant to leave to appeal granted under the “substantial and grave injustice” limb of the provision governing access to this Court in criminal cases, namely s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap.484. This limb provides a residual safeguard to cater for rare and exceptional cases in which there is a real danger of something so seriously wrong that justice demands an inquiry by way of a final criminal appeal despite the absence of any real controversy on any point of law of great and general importance.

2. From So Yiu Fung v. HKSAR (1999) 2 HKCFAR 539 onwards, we have approached appeals brought under the “substantial and grave injustice” limb by considering whether the appellant has shown that there has been to his disadvantage a departure from accepted norms so serious as to constitute a substantial and grave injustice to him. What this appellant complains of, if his complaint is made out, would stand exposed as such a departure – occasioned at trial, not remedied on intermediate appeal and now to be remedied on final appeal. This is because the material circumstances are as follows.

3. The appellant was convicted after trial in the Magistrate’s Court (Colin Mackintosh, Esq. as HH Judge Mackintosh then was) on a charge of having, in a flat in Yuen Long on 30 January 2005, assaulted a Ms Yu occasioning her actual bodily harm. His conviction was affirmed by the High Court (Deputy Judge Arthur Leong, a former Chief Judge of the High Court). He now appeals to us under the “substantial and grave injustice limb” against his conviction.

4. At his trial the appellant gave evidence of an alibi and called a witness in support of his alibi. The magistrate felt unable to reject this alibi but concluded that it was incomplete. In coming to this conclusion, the magistrate said that the alibi covered “only part of the material period”, it being “not possible to be sure as to exactly when this assault is alleged to have taken place”. The appellant contends that this view of the facts is...

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