AG v. TSE KA WAH AND ANOTHER

Headnote

S 81A Criminal Procedure Ordinance Cap 221: applications for Review of Sentence: powers of single judge to extend time when leave requested: must be application for extension: must be explanation for delay

Delivery of Judgment: 6 November 1991

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JUDGMENT

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Silke, V-P:

1. This hearing concerns applications by the Attorney General for Review of Sentence brought under the provisions of Section 81A of the Criminal Procedure Ordinance, Cap 221 and the respondents in all three applications have, as a preliminary issue, placed before the court Notices of Motion in generally similar terms seeking to revoke and set aside the leave to make those application granted ex parte.

2. What had happened was this: in AR 10 of 1990 the respondents, Tse Ka Wah and Chan Chu Ming, were convicted in two separate High Court cases connected with dangerous drugs. In High Court Case- 265/1989 Tse was convicted of attempting to traffick in dangerous drugs and received a sentence of 5 years imprisonment; in high Court Case 275/1989 Chan Chu Ming was convicted of possession of dangerous drugs for the purpose of unlawful trafficking and received a sentences of four years imprisonment. Those sentences were passed on 9th March 1990 by Duffy J.

3. By a document entitled

"Application for leave to apply to the Court of Appeal for review of sentence, under s 81A and to apply for leave out of time'",

dated 26th June 1990, the Attorney General applied for leave to allow further time for the said application to be filed explaining that the delay was due to the fact that, on the day the sentences were passed, it was known that the Court of Appeal was considering guideline sentences in similar drug cases. The judgment of the Court of Appeal giving those guidelines, was not delivered on 29th May 1990 - R v Lau Tak Ming and others [1990] 2. HKLR 370. The leave to make the application and out of time, was granted on 28th June 1990 that is 88 days out of time. The application itself was dated 2nd July 1990, 92 days out of time.

4. In AR 13 of 1990 eight defendants having been convicted of a riot were in the District Court before Honour Judge Daniel, on 6th July 1990, sentenced to nine months imprisonment each - STDC142/89. On 4th August 1990 the Attorney General applied for leave to make application and for an extension of the period in which to file that application. An explanation was given for the delay. Leave was granted on 6th August 1990 and the application was dated 7th August 1990, eight days out of time.

5. In AR 11 of 1990 the respondent, Tsang Man Chung, after trial before Duffy J was sentenced to three years imprisonment concurrent on two counts of wounding contrary to s 17 of the Offences Against the Person Ordinance, Cap 212. An request for leave to make the application was made on 28th June 1990, two days out of time. There was no time application, no explanation for the delay. The request was granted on 29th June 1990 and the application was dated 4th July 1990, four days out of time.

6. All three motions were heard together, Mr Sedgwick with Mr McLanachan appearing for all the respondents, and Mr Cross with Mr W.S. Chung appearing for the Attorney General.

7. It is Mr Sedgwick's main contention that there is no power in the single Justice of the Court of Appeal, exercising the functions of the Court of Appeal under the provisions of s 83Y of the Criminal Procedure Ordinance, to grant extensions of time.

8. He is faced the immediate hurdle of the decision in the Attorney General v Wu Kam Ming and others [1987] HKLR 361. That court had for consideration a similar Notice of Motion based on the grounds that: applications for leave should be made inter partes; the single judge had no jurisdiction to grant leave; no explanation had been given for the delay in filing the application for review.

9. That court held itself to be functus officio, being bound by the decision of the single judge who, in granting leave, had exercised the power vested in the Court of Appeal and there was no jurisdiction to entertain the motion. The court considered the provisions of s 81 (sic), in particular its subsections (1) and (2), and the provisions of subsection (2) para (h) of s 83Y of the Criminal Procedure Ordinance and, having made reference to the then s 35 of the Supreme Court Ordinance (now s 34A), and in particular its subsections (2) and (4), it accepted the Crown's submissions that, as the single judge had already exercised the power of the Court of Appeal, the only remedy was for the aggrieved party to appeal to Her majesty in Council. It went on, obiter, to indicate that the better practice would be to make the applications to the single judge inter partes.

10. No explanation had there be given for the delay from 28th May to 25th July 1986, that is between the sentencing and the request to a single judge for leave to apply out of time. The court, again obiter, felt that an explanation in such circumstances must be given.

11. The applications for review of sentences then proceeded and it is of interest to note that the sentences were not altered.

12. In so deciding, the court in Wu Kam Wing was not referred - and we express no surprise that this was so- to a decision of the Judicial Committee, dredged, by the industry of Hr Sedgwick, from the All India Reports - Krishnasami v Ramasami (1917) AIR 179. I accept that this was a civil matter and concerned the excuse for delay relevant to s 5 of the Limitation Act operative in India. Nevertheless there is a passage in the judgment of Sir Lawrence Jenkins which I think to be one of principle and of general application. In delivering what was the judgment of the Judicial Committee [Lord Parker of Waddington, Lord Wrenbury, Sir John Edge, Mr Ameer Ali] he said at p 180:

 

"It has been argued that the admission of the appeal by Sankaran Nair J was final, and that the Division Bench had no jurisdiction at the hearing of the appeal to reconsider the question whether the delay was excusable. But this order of admission was made not only in the absence of Ramasami Chettiar, the contesting respondent, but without notice to him."

13. I pause here to say that the position in respect of the respondents in these applications is precisely the same as in that last sentence. Sir Lawrence Jenkins continued:

"And yet in terms it purported to deprive him of a valuable right, for it put in peril the finality of the decision in his favour, so that to preclude him from questioning its propriety would amount to a denial of justice. It must, therefore, in common fairness be regarded as a tacit term of an order like the present that though unqualified in expression it should be open to reconsideration at the instance of the party prejudicially affected and this view is sanctioned by the practice of the Courts in India."

14. A convicted applicant who must, under the provisions of s831 of the Criminal Procedure Ordinance, have the leave of the Court of Appeal may, should that leave be refused .by a single judge, and under the provisions of subsection (3) of s 83Y, have the application determined by the Court of Appeal.

15. This Court heard, after the conclusion of the submissions proper, at the request of Mr Sedgwick, further arguments on the construction to be placed on section 34A. It is his contention that that section only confers authority on a single Justice of Appeal to exercise the powers of the Court of Appeal in cases where an appeal has been filed; there is no sanction in that section for the single Justice of the Court of Appeal to exercise the powers of the Court of Appeal in proceedings preliminary to an appeal, such as the granting of leave or an extension of time.

16. Section 34 of the Supreme Court Ordinance Cap 4, which relates to the Court of Appeal in the exercise of its criminal jurisdiction, in its subsection 7 provides:

 

"For the purpose of this section and section 34A, an appeal under Part IV of the Criminal Procedure Ordinance includes the consideration of a question of law reserved for the consideration of the Court of Appeal, the consideration of an application by the Attorney General for the review of any sentence, and the consideration of a reference by the Attorney General of a question of law, under sections 81, 81A and 81D respectively of that Ordinance."(Emphasis supplied)

17. Section 34A reads:

18. Mr Sedgwick places his emphasis on the use in s 34A of the definite article immediately before the word "appeal". I note the addition to s 83Y added in 1978 that the reference to a single judge means both the single Judge of the Court of Appeal or of the High Court. This has direct relevance to the provision of s 34 subsection (3) of the Supreme Court Ordinance which provides that:

19. Mr Sedgwick has urged that the provisions of s 34A cannot be prayed in aid to extend that which he says does not exist under s 83Y of the Criminal Procedure Ordinance, the power of a single Justice of the Court of Appeal to deal with the preliminary applications prior to the actual filing of an appeal.

20. I do not agree. In my judgment the words "the appeal in s 34A must be read in the light of the matters set out in s 34(7) which would constituted the Attorney General an applicant within the appellate process. I am further of the view that in the light of the provisions contained in s 81A, to which I shall refer in a moment, the use of the word "consideration" in s.34(7) should be construed as dealing with all matters pertaining to such an application including the preliminary request for leave to apply.

21. Turning back to Wu Kam Ming. With great respect I think the court there to have taken too narrow of a view of the consequential powers of the full bench of the Court of Appeal. As I have indicated the request for leave, and the actual making of the application itself consequent upon that leave, are, in practice, dealt with ex parte. But it must be remembered that the proceedings before that Court were by way of Notice of Motion, and not as an appeal, partly on the basis that the single justice had no power to extend time and on the basis that" no explanation had been given for a delay in filing the application. It was brought before a full bench of the Court of Appeal the Court which, in the person of single justice, had made the original order. The Court of Appeal "was in effect entertaining a motion to set aside its own ex parte order. Had the original order been made inter partes then the situation might well be different and the full bench might well be required to consider itself as functus officio. I do not, with great respect to the decision in Wu Kam Ming, consider that Court was functus.

22. Further, the granting of leave puts a respondent in peril. The apparent finality of the passing of sentence upon him is brought into question. If the Attorney General, as applicant/appellant, is given leave ex parte and there is later a contention that such leave should not have been given at all, then, in my judgment, it is open to this Court to entertain a Notice of Motion in the terms of the ones we have before us.

23. Turning now to the main issue.

24. Section 81A of the Criminal Procedure Ordinance reads as follows:

The practice in respect of this unusual application unusual in the sense that it confers upon the Attorney General a power which normal1y he would not have - is different, in the practice pertaining in the courts of Hong Kong, from that relevant to a convicted prospective appellant. The latter is generally required, under the provisions of s 83Q of the Criminal Procedure Ordinance, to obtain the leave of the Court of Appeal. He must give notice of appeal or a notice of application for leave to appeal in a manner provided for by the legislation. The time limit is 28 days from the date of conviction, verdict or finding appealed against sentence, from the date upon which sentence was passed. If sentence is delayed for more than 7 days from conviction then the 28 day period runs from the date on which sentence is finally passed. The Court of Appeal is empowered [83Q(3)] to extend the time for the giving of notice. The practice is that the single judge does not normally - and I say this because it is slightly different when application is in respect of sentence out of time - deal with the giving of leave. The whole matter before the full bench which, if the appeal is as of right, treats it as an appeal, or, if the appeal is one where leave is required, deals with it as the hearing of the application for leave and either grants or refuses leave having heard full argument on the merits.

25. In contrast, because of the unusual nature of the Attorney's power to review sentence, the request for leave to make application for review is made to a single Justice of Appeal and is treated as a filter, hurdle that must first be overcome by the Attorney General before he can bring his application.

26. I place emphasis on the opening words of s 81A(1). "The Attorney General may, with the leave of the Court of Appeal, apply to the Court of Appeal for the review of any sentence ...". The expression in subsection (2) of s 81A "An application" is, in my view, not the request for leave to the Court of Appeal but the application for review to the Court of Appeal leave having already been granted. It follows that the time limit of 21 days provided for in 81A(2)(c) relates to the filing of that application. It is obvious that the request for leave must be within that 21 day period, otherwise the application itself is in danger of being out of time. But, should it be out of time, then the Court of Appeal may allow further time and this allowance of further time relates to the making of the application.

27. I am fortified in the conclusion to which I have come by the requirement that the application to the Court of Appeal shall, following the requirement in s 81A(2) (b), be accompanied by the documents set out in 81A(2A). It is reasonably probable that some of the items set out in subsection (2A) would not be available to the Attorney General at the time he makes his request for leave to apply this despite the requirements of s 81A(2B).

28. The single Justice of Appeal, and in these review matters that is normally the person holding the office of Chief Justice, is informed in the request for leave of the nature of the offence, the type of sentence passed and the reason for the request - usually that the sentence is either manifestly inadequate or wrong in principle or both. The single Justice of Appeal then has a discretion as to whether or not he will give the leave requested. There have been, and this as far as I am aware has never been questioned, occasions when the Attorney having been refused his leave, has renewed his request to the full bench of the Court of Appeal by use, presumably, of the provisions of s 83Y(3)

29. It follows from that which I have just said that I do not accept Mr Sedgwick's contention that the expression "An application under subsection (1)" means for leave to apply for review. In my judgment, on the plain reading of the section, the "application" is to apply to the Court of Appeal for the review of any sentence".

30. It will be noted that I have deliberately used the word "request" in relation to the leave to apply to avoid the confusion which appears to follow from having two different types of application.

31. I therefore consider that, in Wu Kam Ming, where it was stated that at p 362 G:

"Further the Ordinance provided that a single judge of the Court of Appeal had full power to deal with these applications"

 

the use of the word "applications" was a lapus linguae and is something which Mr Sedgwick cannot pray in aid of his contention. I accept, however, his contention that nowhere in s 81A is there specific time limit placed on the Attorney to make his request. for leave. But, as I have indicated, the 21 day time limit provided for in s 81A (2)(c) clearly constrains the Attorney to ask for leave before that limit has expired. Should he be out of time, as indeed he was in all these three applications, then he is asking for the further exercise of the single judge's discretion to permit an extension of time within which to make his application to review. The longer the delay the more carefully his explanation for that delay will be scrutinised.

32. The single Justice of Appeal, given that he has the power to extend the time, which Mr Sedgwick contends he has not, having scrutinised the basic reasons for the Attorney General's application contained in the request for leave would, on the face of that application, be entitled to grant the leave even though he does not at that time have in front of him the documents specified in s 81A(2A). It will then be for the full bench of the Court of Appeal to consider, in the light of all the papers before it, whether in fact they should review the sentence. In my judgment there is sufficient, given that the basic facts are before the single judge, for his discretion to bite.

33. While Mr Sedgwick has taken us through the legislative history of the existing sections 81A, 81B and 81C, from my part I do not consider that history to assist me in determining the issues before us. I would certainly accept that the best practice is that the request for leave is made within the 21 day period. But I would go no further than that.

34. Section 83Y of the Criminal Procedure Ordinance reads:

35. In his contention that this-section does not empower a single judge to grant an extension of time within which to make an application under s 81A(1), Mr Sedgwick lays emphasis on the provisions of s 83Y(2)(a) and (b), that is relating to a convict and the giving of leave to extend the time within which notice of appeal or application for leave to appeal may be given. He contrasts this with the provisions of s 83Y (2) (h) - to give leave to apply for the review of sentence under s 81A, but without any reference to an extension of time. It is his submission that unless specific power has been given to the single judge then no power to extend time exists. He has drawn to our attention, in emphasising this distinction, to an apparent dichotomy: the legislature, having empowered the single judge to give leave to appeal to a person convicted on indictment did not consider that that gave that single judge the power to extend time, hence the specific provisions of 83Y (2)(b). If, he says, the legislature had intended the single Justice of Appeal to have power to extend time to make the application under s 81A(1) then it would equally have said so.

36. I am aware in this context that the procedure in England, where this unusual power was given to the Attorney General in 1988, is similar to the practice in Hong Kong relating to appeals by convicted persons. There is no preliminary leave given. It is dealt with at the hearing of the application for review.

37. Whatever similarity there may be between s 84A of the Supreme Court Ordinance; and s 83Y of the Criminal Procedure Ordinance I do not think it presents the difficulties envisaged by Mr Sedgwick. He suggests that the enactment of the then s.35 of the Supreme Court Ordinance in 1975 may have repealed, or at least, impliedly repealed, s 83Y which had come into being in 1972. With respect, I do not think that this submission has reality. Section 34A, as it now is, relates to the generality of the jurisdiction of the Court of Appeal, acting by a single justice. Section 83Y provides for particular instances in which that jurisdiction may be exercised. I think that is as far as the matter goes.

38. As we here are solely concerned with this Court in its criminal jurisdiction I do not accept Mr Sedgwick's invitation to construe s 35 of the Supreme Court Ordinance which relates to the court in its civil jurisdiction and the orders or directions made by a single judge sitting in court or chambers.

39. Despite Mr Sedgwick's interesting arguments to the contrary, the phrase in s 83Y(2)(h) "give leave to apply" must be read in conjunction with the expression in s 81A(2)(c) "or within such further time as the Court of Appeal may allow". It seems to me to be common sense that if a single Justice of Appeal, exercising the powers of the Court of Appeal, as he is entitled to do under s 83Y (2)(h), gives the leave required by s 81A(1) that this must include the power to extend time for the making of the application to the Court of Appeal for which he has just given leave. Any other construction is, I conclude, untenable.

40. Turning now to these instant applications, in AR 10 at the time of request for leave, and for an extension of time to apply, a full explanation was given as to why it was out of time. The single Justice of Appeal gave leave to apply and at the same time allowed an extension of time - although no specific period was referred to - an exercise of his discretion with which we could not properly interfere. The application to the Court of Appeal was thereafter made timeously. For all the reasons which I have given earlier I would refuse the relief sought in the Notice of Motion.

41. In application AR 13 at the time of the request for leave to apply, and for an extension of time, the reasons for the delay were also given. The request for leave was granted and time extended for a further 14 days. Within that period of 14 days the Attorney General, on 7th August, filed with the registrar his application. It was well within the discretion of the single Justice of Appeal to make the orders he did and I would refuse the relief sought in the Notice of Motion.

42. AR 11 however is somewhat different. While the request for leave was only two days out of time the application itself was six days out of time. The request for leave to apply contained no request for any extension of time. The order made was that leave was granted and "papers within 14 days". That was dated 29th June 1990. The subsequent application is dated 4th July 1990, certainly within the purported 14 day extension.

43. Mr Cross has accepted as correct that which was said in Wu Kam Ming at p 363H:

"As to the lack of explanation for the delay we feel that an explanation must be given. An appellant when he applies out of time must file an affidavit explaining the delay. It is a better practice that the Attorney General should be put in the same position. He should at least give reasons why the application was delayed until it is out of time."

44. The court there called that obiter. I would go further for not only there be an explanation for any delay but, in order for the discretion of a single Justice of Appeal to bite, there must equally well be an application for an extension of time. These are ex parte proceedings and there is no provision in the Ordinance requiring that any request or application be made inter partes - therefore so much the greater must be the care taken to see that requests and applications ex parte are properly before the court. We have had an affidavit explaining the reasons for the delay placed before us. I have no doubt that the delay was inadvertent: there was no attempt to mislead the court. It does not, however, appear that there was any indication given to the Justice of Appeal that the matter was, by the time it had reached him, out of time. It is usual in timeously brought applications to give a time limit from the date of the grant of leave within which to make the application. Clearly if the request for leave is close to the expiry of the 21 days then it is a sensible course to give that extension.

45. I do not think that the extension given here avails the Attorney. I entirely agree that, as Lord Denning said in Cozens v North Devon Hospital Management Committee [1966] 2 All ER 799 at 801D:

"It must be remembered that, even when the judge grants leave, there is nothing final about it. It is merely provisional. The defendant will have every opportunity of challenging the facts and the law afterwards at the trial. The judge who tries the case is the one who must rule finally whether the plaintiff has satisfied the conditions for overcoming the time bar."

given, as it was, in the civil context. But, in the criminal context, there should be, in the interests of justice, a much stricter application of the requirements for time. Particularly so when the leave request is intended as a filter.

46. I do not accept, as Mr Cross would have it, that the Court must be taken to know the law in the sense of being aware that an application is out of time. I do not accept that the document "spoke for itself". Would the leave request have been granted if the Court had been properly apprised that the application would be, inevitably, out of time? It may well be that the Court would have done so. But, if the Court is not alerted to the danger by the request for leave containing a further request for an extension of time, then I would think, as more probably than not happen here, the Court will not be in a position to give its full mind to the exercise of its discretion. I view the leave granted here to have been granted under a misapprehension. An application of this nature demands full and fair disclosure. I would emphasise again that this is not intended in any way to criticise or to imply any deception. But it is the effect that matters. In my judgment this Court would be justified in its discretion in discharging an ex parte order, and I have no doubt that we have that power, obtained in the circumstances such as this - Scales v Wong [1983] HKLR 110. It follows that I do not think that the merits of the application here fall for consideration in the sense suggested by Morton J in Ellinger v Guinness, Mahon & Co and others [1939] 4 All ER at p 16. I would grant the Notice of Motion to revoke the leave given.

47. In consequence, there being now no pending review, the order made on 19th August 1991 further detaining Chan Wan Chung is discharged.

48. The respondents in AR 10 are still in the process of serving their sentence. The respondents in AR 13 had completed their sentence some time before this matter originally came on for hearing. It will be a matter now for the Attorney General to decide whether he wishes to pursue those two applications for review of sentence. It is entirely a matter for him whether he wishes to do so or not.

49. Before leaving this matter I unfortunately find myself in the embarrassing position for the fourth, and I hope the last, time in the past l8 months, of expressing my regrets for the delay in the delivery of a judgment, a delay which lies entirely at my door.

50. The orders will therefore be that the Notice of Motion in AR 10 and AR 13 are refused. The Notice of Motion in AR 11 succeeds.

Power, JA:

51. I agree.

Penlington, JA:

52. I agree.