FAMC No. 58 of 2005
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 58 OF 2005 (CRIMINAL)
(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 457 OF 2003)
D E T E R M I N A T I O N
Mr Justice Bokhary PJ:
1. The applicant and his co-accused were convicted after trial in the District Court on a charge jointly laid against them of offeringadvantages to an agent, contrary to sections 9(2)(b) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201. By a majority the Court of Appeal (Stuart-Moore VP and Lunn J, Stock JA dissenting) affirmed their convictions by applyingthe proviso. The applicant now seeks leave to appeal to the Court of Final Appeal. He seeks such leave on both limbs of s.32(2) of the Court’s statute.
2. As far as the “point of law of great and general importance” limb is concerned, the Court of Appeal were unanimous in refusingto certify any such point. In our view, they were right in refusing a certificate. No controversy as to principle is involved. It is necessary to bear in mind the fact-sensitive nature of situations of this kind. This can be illustrated by comparing andcontrasting the present case with the devolution cases before the Privy Council in Holland v. Her Majesty’s Advocate  UKPC D1 and Sinclair v. Her Majesty’s Advocate  UKPC D2. The non-disclosure in each of those two cases kept the defence wholly in the dark on important matters. In the present case thedefence was aware, as was the trial court, that the witness in question was a tainted witness who hoped to benefit from giving evidencefor the prosecution. The non-disclosure only went to some of the specific steps taken with a view to securing such benefit.
3. Turning to the “substantial and grave injustice” limb, the question is whether it is reasonably arguable that the majority inthe Court of Appeal departed from accepted norms in their application of the proviso. That is a different question from whether,on these facts, we, if we had been sitting in the Court of Appeal, might well have, or even probably would have, inclined towardsthe course followed by Stock JA. We do not feel able to say that it is reasonably arguable that the course followed by the majorityamounted to a departure from accepted norms justifying a final appeal even in the absence of any controversy as to principle.
4. Accordingly leave to appeal is refused.
Mr Peter Duncan SC and Ms Maggie Wong (instructed by Messrs Dominic Y.K. Lai & Co.) for the applicant
Mr I.C. McWalters SC and Ms Winnie Ho (of the Department of Justice) for the respondent