HKSAR v. WONG LIN HUNG AND OTHERS

CACC 52/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 52 OF 2011

(ON APPEAL FROM HCCC NO. 136 OF 2010)

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REASONS FOR JUDGMENT

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Hon Lunn VP and McWalters JA (giving the joint reasons for judgment of the Court):

Introduction

1. The applicants were tried in the High Court between 18 November 2010 and 13 January 2011 before Deputy Judge E Toh as she then was (“the judge”) and a jury on an indictment which charged them with conspiracy to commit robbery, contrary to sections 159A and 159C of the Crimes Ordinance, Cap 200 and section 10(1) and (2) of the Theft Ordinance, Cap 210.  The 1^st applicant was additionally charged with possession of arms without a licence, namely a stun gun, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap 238.

2. The conspiracy to commit robbery count alleged not only that they conspired together but also with Wong Kwok-leung and Lee Pau‑chuen.  Wong Kwok-leung pleaded guilty after an unsuccessful voir dire and Lee Pau-chuen pleaded guilty in the magistracy and was committed for sentence.  Lee Pau-chuen agreed to testify for the prosecution and became PW2 at trial.

3. On 13 January 2011 the applicants were convicted by the verdict of the jury and on 26 January 2011 they were sentenced to varying periods of imprisonment.  The 1^st applicant was sentenced on the conspiracy to commit robbery count to 10 years’ imprisonment and on the possession of arms without a licence count to 1 year’s imprisonment which sentence the judge ordered to be served concurrently with the sentence for the conspiracy to commit robbery count.  The 2^nd and 3^rd applicants were sentenced to 8 years’ imprisonment for the conspiracy to commit robbery count.  Wong Kwok-leung was sentenced to 6 years’ imprisonment, from a 8 years starting point and Lee Pau-chuen was sentenced to 4½ years’ imprisonment from a starting point of 10 years’ imprisonment.

4. The applicants applied to the Court of Appeal for leave to appeal their convictions but on 17 January 2013 their applications were dismissed. The applicants then applied to the Court of Final Appeal for leave to appeal their convictions but on 17 December 2013 the Appeal Committee of the Court of Final Appeal dismissed their applications.

5. The applicants then turned their attention to their sentences.  On 22 January 2013 the 3^rd applicant filed an Application for an Extension of Time in which to give Notice of Application for Leave to Appeal Against Sentence. By this date the application was out of time by 23 months.  On 8 February 2013 the 2^nd applicant did, likewise, by which time an application by him for leave to appeal his sentence would have been out of time by almost 2 years.  Finally, the 1^st applicant filed a similar Application for an Extension of Time on 21 January 2014, by which time his application by him for leave to appeal his sentence would have been just short of 3 years out of time.  On 23 May 2013 the 2^nd and 3^rd applicant’s applications for an Extension of Time were adjourned sine die the pending the Determination of the Appeal Committee of the Court of Final Appeal.

6. To complete the history, the accomplice witness, Lee Pau‑chuen also applied for leave to appeal his sentence but on 19 August 2011 the Court of Appeal dismissed his application.  The only ground of appeal advanced by Lee Pau-chuen was that his culpability for this offence should not have been equated with that of the 1^st applicant in this present application.  That argument was rejected with the court saying that Lee Pau-chuen played a very important role in the conspiracy and was more culpable than his co-conspirators, other than the 1^st applicant.

7. At the hearing of the applications we dismissed them and, after hearing from the applicants, ordered under section 83W(1) of the Criminal Procedure Ordinance, Cap 221 that 2 months of the time during which the applicants are in custody pending determination of their applications shall not be reckoned as part of the term of the sentences to which they are for the time being subject.  We said we would give our reasons for so doing at a later time and this we now do.

The Applications

8. The 1^st applicant in a document attached to his Form XI asserts that he was wrongly characterized by the judge as the mastermind of the offence which error resulted in him receiving a longer sentence of imprisonment. He maintains that everything he and his co-accuseds did was done on the instructions of the prosecution’s accomplice witness, Lee Pau-chuen, a claim which he said was proven by a letter sent to the Organized Crime and Triad Bureau and which was exhibited at trial as P96.  The 1^st applicant also filed an affirmation dated 21 January 2014 in which he provided an explanation for his delay in applying for leave to appeal his sentence.  He said that at the conclusion of his trial his legal representative advised him not to appeal against conviction and sentence at the same time, advice which he says, in his ignorance, he accepted and followed.

9. Additionally, the 1^st applicant wrote to the court on 24 March 2014 and 2 May 2014.  In his 24^th March letter he said he had two grounds of appeal.  In his first ground of appeal he repeated his complaint that he had been wrongly portrayed as the mastermind of the case and sentenced accordingly.  He repeats his assertion that Lee Pau‑chuen was the mastermind and in support of this ground he relies on the contents of Exhibit P96.

10. The second ground of appeal complains of the refusal by the trial judge to accede to the 1^st applicant’s application that the person who was the police informant in this case be summonsed to give evidence at the trial.  He claims that had the informant testified it would have been apparent that Lee Pau-chuen was the mastermind and not he, the 1^st applicant.

11. In his letter of 2^nd May the 1^st applicant asks for Exhibit P96 to be placed before us for the purpose of his appeal and repeats his second ground of appeal.

12. In his Form XI the 2^nd applicant maintains that he was only accompanying the 3rd applicant to keep a car under surveillance and was not a party to a conspiracy to rob.  In an affirmation dated 8 February 2013 the 2^nd applicant explains his delay in applying for leave to appeal against sentence as due to the fact that he had already applied for leave to appeal against conviction and he was “unable to cite any authorities for the court’s reference at that time”.

13. Additionally, the 2^nd applicant wrote to the court on 1 May 2014.  In this letter the 2^nd applicant complains of the judge’s refusal to require the police informant to testify as a result of which he says he received an unfair trial.  He cites a District Court case in support of his complaint.

14. The 3^rd applicant attached to his Form XI an affirmation dated 22 January 2013 in which he explains his failure to apply for leave to appeal against sentence in time as being due to a momentary oversight and forgetfulness.  He did not mention in his Form XI any grounds of appeal but he did set out his complaints in four letters to the court.  In his first three letters, all dated 11 April 2014, the 3^rd applicant maintained that he had no knowledge of the robbery and thought that he was just assisting in the resolution of a monetary dispute.  He cited a number of cases which he said are similar cases to his situation.  He also claimed he had no knowledge that the 1^st applicant had a stun gun in his possession and repeated the complaint of the other applicants that the judge’s ruling in respect of the police informant had the effect of denying him a fair trial.  In his fourth letter dated 5 May 2014 he repeats his complaint that he had hoped that the police informant, had he testified, would have exculpated him from involvement in a conspiracy to commit robbery, albeit he admits he is guilty of offences of intimidation and wounding.

15. At the hearing all of the applicants confirmed the explanations they had provided for not applying for leave to appeal in time and their grounds of appeal as set out in their Forms XI and other documents filed with the court. The 1^st applicant further explained his delay in applying for leave to appeal by saying that he was advised by his lawyer that he had to have grounds of appeal and so he commenced looking for similar cases involving police informants.  He said he wondered how he could fashion a ground of appeal out of his complaint that the judge was wrong to characterize him as the mastermind of this crime and then he remembered Exhibit P96.

16. The 2^nd applicant had no further explanation for his delay in applying for leave to appeal his sentence and in respect of his grounds of appeal said his main concern was the police informant not being required to testify.  He said that through cross-examining the police informant he hoped to obtain exculpatory evidence.

17. The 3^rd applicant supplemented his reason for delay by saying he was not familiar with procedures and he thought that if he made an application for leave to appeal against sentence he would be required to set out his grounds of appeal and he wanted to have concrete grounds before he lodged an appeal.  As to his grounds of appeal he said he relied upon the unfairness of the judge’s ruling in respect of the police informant, from whom he also hoped to adduce exculpatory evidence.

18. Each of the applicants were shown their first Form XI in which they had applied for leave to appeal their convictions and in which they had deleted or, in respect of the 3^rd applicant not ticked the box for, “application for leave to appeal against sentence”.  When pressed by the Court as to why they had done so they all said they were not familiar with procedures.

Discussion

19. The starting point to a consideration of the applications is to recognize that they are applications for an extension of time.  As such the applicants are seeking the indulgence of the court and in order to persuade this Court to grant them this indulgence, the applicants must place before us reasons for their failure timeously to make application.  The shorter the length of delay and the more reasonable the explanation for the delay, the more disposed this Court will be to grant the indulgence.  What the law requires of persons applying for an extension of time was explained by Silke VP in R v Wong Kai Kong & Anor [1990] 1 HKC 279 at page 281C when he said that “substantial grounds must be shown for the delay before the granting of the indulgence.  The longer the delay, the more onerous is the duty of the person making application …”.  However, notwithstanding the absence of a reasonable explanation for the delay the court will examine the proposed grounds of appeal so as to ensure that should it refuse the application for an extension of time it would not be “shutting out a substantial and plainly arguable ground of appeal.” [1]

20. Clearly, the delay in respect of all the applicants is substantial – it is not weeks or months but years – and calls for equally substantial reasons to explain it.  Here, those reasons are neither substantial nor credible.  The way the first Form XIs were completed and the chronology of the litigation shows that a considered decision was made not to apply for leave to appeal their sentences pending the outcome of their conviction appeals. Indeed, the 1st and 2^nd applicants admit as much, recognizing, they say, that they had to have grounds of appeal before lodging an application for leave to appeal and implicitly admitting that no such grounds were available to them at the end of their trial.

21. Having to deal with this reality may explain the ultimately insubstantial nature of the grounds of appeal upon which the applicants finally determined. We have examined them for the purpose of their applications for an extension of item in order to satisfy ourselves that by refusing the applications we would not be shutting out substantial and plainly arguable grounds of appeal.  We have no hesitation in concluding that refusing the applications would not have such a consequence.

22. The complaint by the 1^st applicant that he was wrongly characterized as the mastermind is quite without merit.  Such a finding was clearly available to the judge once the evidence of Lee Pau-chuen was accepted. Clearly, it was accepted by the jury in order for them to return verdicts of guilty.

23. The question of the credibility of Lee Pau-chuen, especially as it was affected by the letter P96, was a matter fully canvassed at trial.  Lee gave an explanation for it which, again, the jury must have accepted.  It is not for this Court, on an application relating to sentence, to consider whether the jury should have accepted the evidence which underlay their verdict.

24. The issue of the police informant was also fully canvassed at trial and even though the judge’s ruling was adverse to the applicants, she made it clear that she would revisit the issue in the course of the trial if invited to do so.  No such invitation was ever taken up by the applicants and neither was the judge’s ruling ever made the subject of a ground of appeal against conviction. If this was an issue to be raised it should have been raised on the applicants’ appeals against conviction.  Furthermore, we note that none of the applicants say the informant would exculpate them, only that they hope he would.  There is no merit in this proposed ground of appeal.

Conclusion

25. We were satisfied that these applications, both in respect of the reasons advanced to explain and excuse the delays, and the grounds of appeal proposed to be argued, were wholly unmeritorious and dismissed them.

26. It seemed to us that this was very much a case where the applicants, knowing they had no grounds that could be advanced in an appeal against sentence, exhausted their rights of appeal against conviction.  Once they encountered no success in the exercise of those rights they then decided they would have one last “roll of the dice” in respect of sentence.  As we have said the grounds of appeal they then came up with are totally lacking in merit and as a result a significant amount of judicial time has been wasted with the consequence that meritorious cases may have been delayed.  For these reasons we were satisfied that this was a case where we should consider whether to exercise our section 83W(1) power. We called upon the applicants to address us on this issue and rose to give them an opportunity to consider what they might with to say.

27. When we resumed each of the applicants repeated that they thought their grounds of appeal had merit and that their sentences were severe.  Having heard from the applicants, we decided that this was an appropriate case in which to exercise our section 83W(1) power and made the order set out earlier in these Reasons for Judgment.

Hon McWalters JA:

Addendum

28. Since giving judgment in this case I have reconsidered our power to make a loss of time order under section 83W(1) in respect of a person who is applying for an extension of time in which to seek leave to appeal.  The question that concerns me is whether such an applicant can be regarded as an applicant for leave to appeal.  As this question involves an issue of the liberty of the individual I felt I should raise it.

29. This issue was squarely addressed by this Court in R v Lau Kam CACC 428/1989; unreported, 11 May 1990.  In that case Macdougall JA in giving judgment on behalf of the three judge Court of Appeal said:

“ Although it was presumed by a differently constituted division of this court in Li Mau-lam v. The Queen [1981] HKLR 600 that it possessed this power where an application for leave to appeal out of time is refused, it has since been suggested that the existence of such power is doubtful. We therefore called on Mr Saw for the Crown to address us on this point.

He referred us to the definition of “appellant” in section 2 of that Ordinance which reads:

‘“appellant” includes a person who has given notice of application for leave to appeal’;

and submitted that an applicant who applies for leave to appeal out of time is no less an appellant than a person who makes his application for leave to appeal within time. The application he makes, whether it is within time or out of time, is still an application for leave to appeal.

We agree.”

30. Clearly, this Court was of the view that an applicant for an extension of time in which to seek leave to appeal is a person who has given notice of application for leave to appeal.

31. The only other relevant occasion when the section 83W(1) power was addressed was in Hau Kin & Others v HKSAR (2005) 8 HKCFAR 63 when the Court of Final Appeal construed the phrase “the time during which an appellant is in custody pending the determination of his appeal”. It said at page 66C-E of the report:

“On a plain reading of the provision, the time is the period between the filing of his application for leave to appeal and the determination of his appeal. The determination of an appellant’s appeal is only pending after he has filed his application for leave to appeal. Accordingly, the period between the filing of his application for leave to appeal and the determination of his appeal is the maximum period which the court may direct should not be counted as part of the term of his sentence of imprisonment. It is this period which the court may order as lost time.” [2]

32. It seems to me that it must follow from these comments that an application for leave to appeal must have been filed before the power is exercisable by the Court of Appeal.  Thus, the question becomes whether a prisoner who is applying for an extension of time for the purpose of applying for leave to appeal is a person who has filed an application for leave to appeal.

33. In determining the application for an extension of time a court will have regard to the proposed grounds of appeal as set out in the application for leave to appeal.  In so doing, the distinction between the two applications may become blurred and sight might be lost of the legal reality that when such an application is determined unfavourably to the applicant, it is the application for an extension of time that is being dismissed not the application for leave to appeal.  If that is so then an applicant for leave to appeal cannot give notice of his application until the extension of time is granted by the Court of Appeal.

34. Furthermore, the provisions dealing with the filing of notices of appeal and of applications for leave to appeal, which are in section 83Q of the Criminal Procedure Ordinance, Cap 221 as supplemented by the Criminal Appeal Rules [3], support a distinction between the application for an extension of time and the giving of notice to appeal or of application for leave to appeal.  In this regard I note that section 83Q(3) specifically empowers the court to extend the time for giving notice of appeal or notice of application for leave to appeal.

35. Hence, my concern that the Court of Appeal may not be empowered to order loss of time under section 83W(1) on a prisoner who is applying for an extension of time in which to seek leave to appeal, simply because he would not be, at that time, an applicant for leave to appeal.

36. I shall forward a copy of this judgment to the Director of Legal Aid and draw his attention to this Addendum.

[1]   See R v Wong Kai Kong & Anor [1990] 1 HKC 279 at 281B – where Silke VP quoted with approval a proposition of Hunter JA in R v Ip Chung Hang CACC 345/1988; unreported, 10 August 1988.

[2]   It is pertinent to note that one of the appellants in Hau Kin & Ors was a prisoner applying to the Court of Appeal for an extension of time for the purpose of applying for leave to appeal.  This was the appellant Ho Fook Shing whose appeal was discussed at page 67E-I of the report.

[3]   Rules 34-38 of the Criminal Appeal Rules are the relevant rules and they make a clear distinction between a notice of appeal, a notice of application for leave to appeal and a notice of application for extension of the time within which the first two notices shall be given.