HKSAR v. WONG KWAI WING

CACC514/1991

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.514 OF 1991

(ON APPEAL FROM HCCC 348 OF 1990)

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J U D G M E N T

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Gall J (giving the judgment of the Court) :

1. The applicant seeks an order that his abandonment of his application for leave to appeal against sentence be treated as a nullity.

2. On 15 October 1991, the applicant was convicted after trial in respect of one count of trafficking in a dangerous drug and one count of possession of a dangerous drug for the purpose of unlawful trafficking. On 18 October 1991, he was sentenced in respect of the first count to 20 years' imprisonment and in respect of the second count to 22 years' imprisonment, the sentences to be served concurrently.

3. On 13 November 1991, he applied for leave to appeal against both convictions and sentences. His applications were within time. The applications for leave to appeal conviction and sentence were heard on 17 September 1992. He was unrepresented and the matter was adjourned for him to seek legal representation.

4. His applications again came before the court on 24 February 1993. The applicant was then represented by counsel. At that hearing, in his presence, the application for leave to appeal again sentences was abandoned by his counsel. His application for leave to appeal against conviction was heard and dismissed on 22 June 1993.

5. On 9 July 1993, he applied for leave to appeal against his sentences out of time. The application was made on the basis that the counsel representing him on 24 February 1993 had, without his consent, abandoned his application for leave to appeal his sentences.

6. On 7 March 1994, he abandoned this application for leave to appeal against his sentences out of time.

7. On 6 September 2002, he applied for leave to treat his abandonment as a nullity and applied for leave to appeal against sentence.

8. The grounds on which he applied are that in respect of the first instance of abandonment, his counsel, on 24 February 1993, abandoned his application for leave to appeal without his consent. In respect of the second claimed instance of abandonment, on 7 March 1994, his reasons for reapplying for leave were that his family lacked money and, having been denied legal aid, he abandoned his application in their financial interest.

9. The abandonment of his application on 24 February 1993 the applicant admits was made in open court in his presence and in circumstances where he was fully aware of what was taking place and where he was in a position to bring to the attention of his legal representative and to the court any objection he had to the abandonment. He did not do so.

10. The application for leave to appeal out of time made on 9 July 1993 was misconceived and ought to have been an application to treat his earlier abandonment as a nullity. That application was abandoned by the applicant by his own desire and for his own reasons.

11. We are satisfied that the circumstances of the abandonment of his application on 24 February 1993 are such that his properly advised mind went with the act. That is to say the abandonment of the application was made in his presence, with his knowledge and with his informed consent. It was an effective and proper abandonment.

12. We are further satisfied that his second application for leave to appeal his sentences even if it were to be treated as an application to treat the earlier abandonment as a nullity was properly withdrawn by him of his own volition and properly for his own reason.

13. The application now before us to treat the abandonment of the application for leave to appeal sentences made on 13 November 1991 and abandoned on 24 February 1993 is without merit and is refused.