FAMC No. 2 of 2007

IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2 OF 2007 (CRIMINAL)
(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 26 OF 2006)

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Between:


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Mr Justice Bokhary PJ:
The Court of Appeal’s judgment leaves the applicant with two convictions.  One is of conspiracy to defraud (under Charge 2), and the other is of conspiracy to pervert the course of public justice (under Charge 3).  The Court of Appeal certified the applicant’s first point, which is her point to the effect that the elements of the offence of conspiracy to defraud are insufficiently precise to satisfy the constitutional requirement of legal certainty.  They refused to certify her remaining four points, namely points 2 to 5 which are the ones identified by these questions :
(2)	Whether it is sufficient for the admission against A of evidence of acts and declarations by B in furtherance of a conspiracy, that there is prima facie proof that A has agreed with B to be party to that conspiracy.
(3)	Whether it is necessary for a judge to direct himself in terms of the dangers of relying on the acts and declarations of co-conspirators where the person against whom the evidence has been admitted has no effective opportunity to cross examine in relation to that evidence.
(4)	Whether on appeal from a professional judge, an appellate court is in law entitled to assume that an element of an offence as charged has been proved (Charge 2) or an important evidential matter has or has not been relied upon (Charge 3) in the absence of an express finding by the trial judge or alternatively notwithstanding an express finding that suggests the contrary.
Whether on appeal from a professional judge, an appellate court shall have regard to the findings of the trial judge and consider the merits of an appeal by reference to a proper construction of those findings.

Shortly stated, the Court of Appeal’s reasons for refusing to certify points 2 to 5 are as follows.  The context was so plain and straightforward that nothing turned on point 2.  On the Court of Appeal’s view as to what evidence the trial judge had relied upon, point 3 did not arise.  Point 4 did not arise because the Court of Appeal took the view that, contrary to the applicant’s contention, the trial judge did make the findings concerned.  And point 5 was obvious, did not call for certification and merely went to a complaint that the Court of Appeal had erred in its analysis of the trial judge’s reasoning.

What the applicant now asks to do can be summarised as follows.  She asks us to :
grant her leave to appeal for the purpose of pursuing the point certified by the Court of Appeal; 
certify points 2 to 4 and grant her leave to appeal for the purpose of pursuing them;
grant her leave to appeal on the “substantial and grave injustice” ground for the purpose of pursuing the substance of the complaint under point 4 if we do not certify that point; and 
grant her leave to appeal on the “substantial and grave injustice” ground for the purpose of pursuing complaints that the trial judge had given insufficient reasons, that the Court of Appeal had wrongly resorted to a process of inference to interpret the reasons given by the trial judge and that the Court of Appeal had failed to have regard to certain findings of the trial judge which were relevant to their consideration of whether an inference drawn by the trial judge was warranted.

We think that the Court of Appeal were right in refusing to certify the points which they refused to certify.  And we see no basis for leave to appeal in this case on the “substantial and grave injustice” ground.

As for the point which the Court of Appeal certified, we consider it appropriate to grant leave to appeal for the purpose of pursuing it.  We extend time and grant the applicant leave to appeal to the Court of Final Appeal for the pursuing the certified point.

This means that the applicant does not have leave to appeal against her conviction for conspiracy to pervert the course of public justice but has leave to appeal against her conviction for conspiracy to defraud, such appeal being limited to the question of whether the elements of the offence of conspiracy to defraud are sufficiently precise to satisfy the constitutional requirement of legal certainty.





Ms Clare Montgomery QC and Ms Po Wing Kay (instructed by Messrs W M Lo & Co.) for the applicant
Mr Kevin P Zervos SC and Ms Winnie Ho (of the Department of Justice) for the respondent
