IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NO. 164 OF 2011
(ON APPEAL FROM ESS NOS. 34781-34785 and 34787 OF 2008)
Before : Hon M. Poon J in Court
Date of Hearing : 2 September 2011
Date of Determination : 2 September 2011
Date of Reasons for Determination : 9 September 2011
REASONS FOR DETERMINATION
1. This application arises from an appeal against the decision of a magistrate, to which I have dismissed on 11 August 2011. Noticesof Motion were filed on 15 and 18 August 2011.
2. Background and facts of the case are laid out in full in my judgment which I am not going to repeat or recite.
3. According to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 ：
4. The point of law stated to be certified is as follows :
5. I decline to let the appellants raise the first point of law in the appeal. Reasons were given in my judgment. The second issuehas also been dealt with.
6. However, since the present case involves a constitutionality issue, I agree that these points of law are of great and general importance. I grant section 32 certificate to the Court of Final Appeal certifying the above two points.
7. Pursuant to section 120 of the Magistrates Ordinance, Cap. 227, costs orders against the unsuccessful applicants are entirely within the discretion of the Court on a section 105 appeal. It was submitted by the appellants that this is a test case on the constitutionality of the Class 3 Offence, without thecase stated appeal against the ruling of the magistrate there would not have been precedent for other magistrates, and that boththe applicants as well as the respondent need this Case Stated to clarify definitive issues. All of these are not grounds for notmaking a costs order against the applicants. I refuse to set aside the costs order and order it to be made absolute.
Mr Ira Lui, SPP of Department of Justice, for HKSAR
Mr Martin Lee, SC leading Miss Charleen Tong, instructed by Messrs Ho, Tse, Wai & Partners, for the 1st, 3rd, 4th and 5th Appellants
Mr Martin Lee, SC leading Mr Lee Siu Him, instructed by Messrs JCC Cheung & Co., for the 2nd and 6th Appellants