SIN KAM WAH AND ANOTHER v. HKSAR

FAMC No. 29 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 29 OF 2004 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 520 OF 2003)

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Between:

  SIN KAM WAH 1st Applicant
  LAM CHUEN IP 2nd Applicant
  and  
HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent

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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 3 December 2004

Date of Determination: 3 December 2004

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

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Mr Justice Bokhary PJ:

1. The 2nd applicant has wisely abandoned her application for leave to appeal to the Court of Final Appeal against sentence. That leaves thematter of conviction.

2. There is a proper issue over whether it has indeed been found as a fact that the 1st applicant knew that the 2nd applicant exercised control, direction or influence over the prostitutes in question. And if that has indeed been found, then itwould be reasonably arguable that there has been substantial and grave injustice to the 1st applicant in the making of such finding. So we arrive at, as far as he is concerned, a question of law of great and general importance,namely whether a police officer commits the crime of misconduct in public office simply when someone provides him with the services,free of charge to him, of prostitutes, and he accepts.

3. Flowing from that, there arises in relation to the offering charges against the 2nd applicant the question of whether, in such circumstances, the provider commits the offence of offering an advantage to a governmentservant. This, too, is a question of law of great and general importance.

4. We certify the involvement of both those questions. And the points arising under them being reasonably arguable, we grant, on thatbasis, the 1st applicant leave to appeal against his convictions and the 2nd applicant leave to appeal against her convictions on the offering charges.

5. As far as her convictions on the controlling, directing or influencing charges are concerned, these appear so intimately connectedwith the other convictions that leave to appeal against these convictions is also granted.

6. Our grant of leave to appeal is based primarily on the point of law of great and general importance ground but also on the substantialand grave injustice ground as that, too, may arise.

7. The way in which we have expressed ourselves is not meant to limit the arguments which the appellants and the prosecution may properlyadvance in the appeal itself for the purposes of overturning or upholding any of these convictions.

8. We thank counsel for their assistance.

[The applicants were granted bail pending appeal]

(Kemal Bokhary) (Patrick Chan) (R.A.V. Ribeiro)
Permanent Judge Permanent Judge Permanent Judge

Mr Gerard McCoy SC and Ms Kennis Tai (instructed by Messrs K.Y. Lo & Co) for the 1st applicant

Mr A.A. Hoosen and Mr Kevin K.W. Wong (instructed by Messrs K.Y. Lo & Co.) for the 2nd applicant

Mr Kevin P. Zervos SC and Mr Marco Li (for the Department of Justice) for the respondent