HKSAR v. DEAKIN, SHERYL TERESA

HCMA 331/2018

[2018] HKCFI 2687

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 331 OF 2018

(ON APPEAL FROM FLCC 3118 OF 2017)

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J U D G M E N T

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1.  The appellant in this case, Miss Sheryl Teresa Deakin, is not present in court today. It appears from her undated letter that she is not available to return to Hong Kong as she has a placement until 30 December 2018, and then she starts another full semester from 5 January until 1 July. In that letter which I received yesterday, (sent together with her father’s letter dated 12 November 2018,) she says she will not be able to prepare for her defence with her lawyer in person till such date.

2.  The appellant appears to be saying to this court that she will not be here for her hearing.  She has not requested for an adjournment.  She has not informed the court as to when she will be back in Hong Kong or given any date but for the fact that she will not be here until 1 July 2019, I assume.

3.  Her father, Mr. Deakin has written letters to the court on two occasions.  On the first occasion his letter dated 5 November 2018, the court replied by letter dated 6 November 2018, informing him that as he is not the appellant or her legal representative, the court could not consider any communication from him to this court.  Mr Deakin wrote to the court again on 12 November 2018 attaching his daughter’s letter which the court received yesterday.  Mr Deakin’s letter asks this court to adjourn the daughter’s appeal against conviction as she will only be able to return to Hong Kong after 1 July 2019.

4.  Miss Claudia Ng, Senior Public Prosecutor, for the Respondent opposes any application for adjournment on the basis that, importantly, the notice of hearing was given to the appellant on 5 September 2018.  For all these past months no explanation or written explanation has been given as to why she is not available to attend this hearing.  Furthermore, the appellant has not even given or suggested a new hearing date but only stated that she will return to Hong Kong in July. Therefore, the respondent opposes the adjournment and invites this court on refusing the adjournment, to dismiss the appellant’s appeal.  

5.  The appellant was convicted of an offence of possession of a dangerous drug on 5 July 2018.  On that same date, she filed her notice of appeal to a judge against conviction, Form 101. 

6.  On 18 July 2018, the registrar of the High Court wrote to the appellant, enclosing an appeal bundle, and told her that her appeal would be listed for hearing soon, and to ensure her appeal was disposed of expeditiously, directions were given. 

7.  Firstly, she was required to file with the court and serve on the respondent her perfected grounds of appeal within the next 21 days.  No such grounds were received by the court from the appellant.

8.  The second direction was that irrespective of whether she had filed perfected grounds of appeal, in order to explain and elaborate her grounds of appeal or perfected grounds, if any, she was required to serve with the court and serve on the respondent her written submissions within the next 35 days.  These have not been received.

9.  Thirdly, the respondent was required to file with the court and serve on the appellant written submissions within the next 49 days.  The respondent’s written submissions dated 10 September 2018 were filed and served.

10.  Fourthly, in that letter and, most importantly, it stated:

“If you have any other applications relating to the hearing, you are required to make such applications in writing to the court as soon as possible, and in any event, not later than 14 days prior to the hearing.”

11.  The court had not heard from the appellant until yesterday, one day prior to the hearing.  She has done nothing to indicate or to prepare for her appeal against conviction since the Registrar’s letter was posted to her on 18 July 2018.  Four months have passed since then.  The appellant has not complied with any of the court’s directions as to the furtherance of her appeal against conviction.  Even if the court were to take into consideration the father’s letter written to the court which was, as mentioned, is not a letter from the appellant, that letter was received within 14 days of the date of this hearing. 

12.  The application for adjournment, if there is one at all, is refused. 

13.  The hearing is therefore to be held today, and as the appellant is not present, her appeal is dismissed for want of prosecution.