Secretary For Justice v Chan Pak Shan

CourtCourt of Final Appeal (Hong Kong)
Judgment Date20 Dec 2017
Judgement NumberFAMC55/2017
SubjectMiscellaneous Proceedings (Criminal)
FAMC43A/2017 SECRETARY FOR JUSTICE v. LAU KWOK LEUNG

FAMC Nos. 43 to 55 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS. 43 TO 55 OF 2017 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CAAR NO. 3 OF 2016)

_______________________

BETWEEN

SECRETARY FOR JUSTICE Applicant
(Respondent)
and
LEUNG HIU YEUNG (梁曉暘) (D1) 1st Respondent
(Applicant in FAMC 50/2017)
WONG HO MING (黃浩銘) (D2) 2nd Respondent
(Applicant in FAMC 51/2017)
LAU KWOK LEUNG (劉國樑) (D3) 3rd Respondent
(Applicant in FAMC 43/2017)
LEUNG WING LAI (梁穎禮) (D4) 4th Respondent
(Applicant in FAMC 52/2017)
LAM LONG YIN (林朗彥) (D5) 5th Respondent
(Applicant in FAMC 44/2017)
CHU WAI CHUNG (朱偉聰) (D6) 6th Respondent
(Applicant in FAMC 53/2017)
HO KIT WANG (何潔泓) (D7) 7th Respondent
(Applicant in FAMC 48/2017)
CHOW KOOT YIN, KOLE (周豁然) (D8) 8th Respondent
(Applicant in FAMC 49/2017)
YIM MAN WA (嚴敏華) (D10) 9th Respondent
(Applicant in FAMC 54/2017)
CHIU HIN CHUNG (招顯聰) (D11) 10th Respondent
(Applicant in FAMC 45/2017)
KWOK YIU CHEONG (郭耀昌) (D12) 11th Respondent
(Applicant in FAMC 46/2017)
WONG KAN YUEN (黃根源) (D14) 12th Respondent
(Applicant in FAMC 47/2017)
CHAN PAK SHAN (陳白山) (D15) 13th Respondent
(Applicant in FAMC 55/2017)

_______________________

Appeal Committee: Chief Justice Ma, Mr Justice Tang PJ and Mr Justice Fok PJ
Date of Determination: 20 December 2017

_______________________

DETERMINATION

_______________________

The Appeal Committee:

1. On 24 November 2017, on the application of eight of the respective applicants in these matters,[1] Ribeiro PJ granted those applicants bail pending the hearing of their applications for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal[2] reviewing the sentences that had been imposed on them for convictions for unlawful assembly (and certain other offences).[3]

2. When he granted bail as aforesaid, Ribeiro PJ referred to the forthcoming hearing of the substantive appeals in Secretary for Justice v Wong Chi Fung & Others[4] (“the Wong Chi Fung case”) and further directed:

“The Registrar will fix a date for the hearing of the leave applications in the present case shortly after the Court issues its judgment in that appeal.”

3. By summonses dated 5 December 2017, the applicants in FAMC 43 to 47 and 50 to 55 of 2017 have applied for an order that, in spite of that direction given by Ribeiro PJ, the Registrar be directed to fix an early date for the hearing of the applications for leave to appeal to the Court of Final Appeal by the applicants.

4. The applicants’ summonses also then seek orders that, if leave to appeal is granted by the Appeal Committee: (i) the hearing of the substantive appeals to the Court of Final Appeal be consolidated with the appeals in the Wong Chi Fung case; (ii) there be consequential orders for the abridgement of time for the filing of printed cases and records for the appeals; and (iii) the substantive appeals be heard together with the appeals in the Wong Chi Fung case on 16 January 2018, and/or some other date or dates, or one immediately after the other.

5. Although the applicants in FAMC 48 and 49 of 2017 have not issued similar summonses, their solicitors have written to the Registrar of the Court of Final Appeal to indicate that the applicants will abide by the decision to be made in the applications made by the other applicants.[5]

6. By letter dated 8 December 2017, the Registrar notified the parties’ solicitors that the applicants’ summonses would be referred to the Appeal Committee for disposal on the papers and directed the filing of written submissions, which have now been received.

7. The applicants seek the directions set out in their summonses on the basis that there are common issues raised in that three of the four issues to be heard in the Wong Chi Fung case also arise in these cases and also on the basis of the procedural history of the two sets of cases, which is said to be unusual. The appellants in the Wong Chi Fung case are represented by two of the firms representing applicants in the present cases,[6] and the solicitors in question are satisfied that the directions sought will not adversely affect the interests of the appellants in the Wong Chi Fung case. Some of the applicants in these cases have been granted legal aid and it is suggested also that there may be some savings in the fees paid to counsel and solicitors due to some of the applicants having common representation with the appellants in the Wong Chi Fung case.

8. In the Wong Chi Fung case, the Court of Final Appeal will hear argument on the following issues of law common to each of the three applicants in that case, namely:

(1) “To what extent can the Court of Appeal on an application for review of sentence under s.81A of the Criminal Procedure Ordinance, Cap 221 reverse, modify, substitute or supplement the factual basis on which the original sentence was based?”

(2) “To what extent should a sentencing court take into account the motives of a defendant in committing the crime of which he or she has been convicted, particularly in cases where it is asserted that the crime was committed as an act of civil disobedience or in the exercise of a constitutional right?”

(3) “Insofar as the Court of Appeal was seeking to do so at all, in arriving at the appropriate sentences for the applicants, to what extent ought the Court of Appeal have made allowance for the assertion made by them that guidelines to sentencing courts for the future were being given?”

The Court will also hear argument in respect of the appellant Wong Chi Fung[7] on a fourth issue, namely:

(4) “To what extent should the Court of Appeal...

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