HKSAR v. WONG WAI MAN AND OTHERS

CACC459/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 459 OF 2001

(ON APPEAL FROM HCCC NO. 333 OF 2000)

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D E C I S I O N

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Hon Ma CJHC (giving the decision of the Court) :

1st and 2nd Applicants

1. On 25 July 2003, we handed down a judgment in this appeal in which the convictions for murder of the 1st and 2nd Applicants were quashed following a misdirection on the evidence by the trial judge to the jury in the Applicants' trial. The trial, which took place in September 2001, was the second murder trial faced by the Applicants. The Applicants were co-defendants together with the 3rd Applicant. In 1998, the three Applicants had already faced trial for the murder together with a 4th defendant.

2. The question for consideration this morning is to decide on what consequential orders should be made. Here, the choices were really either ordering a re-trial or substituting a conviction of manslaughter for that of murder.

3. Having heard counsel's submissions, we are of the view that a re-trial should be ordered. We have taken into account the fact that this would be the third trial that the two Applicants will face for the alleged murder, that they have now been in custody for over 7 years, the fact that it has been 7 years since the relevant incident and various other points made on their behalf. We have also taken into account the gravity of the offence and the issues which are likely to arise at the re-trial. We have considered the relevant cases referred to us which include The Queen v Law Shing Huen [1989] 1 HKLR 294 and R v Holgate (No.2) [1996] 3 HKC 324. Useful passages are also contained in Archbold 2004 at paragraphs 4-45 and 7-112 and Archbold Hong Kong at paragraph 4-19.

4. In our view, the public interest is clear in a re-trial being ordered and in having a jury decide, one way or the other, whether a case for murder is established against these Applicants.

The application of the 3rd Applicant to treat his abandonment of the appeal as a nullity

5. On 26 September 2001, the 3rd Applicant was convicted together with the 1st and 2nd Applicants of a murder which took place on 17 December 1996. He was sentenced to a term of 24 years' imprisonment as he was aged 15 at the time of the offence.

6. By a Notice of Appeal dated 26 November 2001, the 3rd Applicant sought leave to appeal against conviction and by one dated 3 May 2002, he sought to do so against sentence. On 9 September 2002, however, he formally abandoned his application for leave to appeal against conviction. Under the provisions of Rule 39 of the Criminal Appeal Rules, this had the effect that his appeal was dismissed.

7. Following our judgment handed down on 25 July 2003 quashing the convictions of the 1st and 2nd Applicants, the 3rd Applicant has applied to this court to treat his abandonment of the appeal as a nullity. It is opposed by the Respondent.

8. Relevant principles governing such applications were extensively articulated by this court in HKSAR v Lai Siu Cheung, unreported, CACC487/2002, 23 December 2003. Essentially, in order successfully to apply to treat the abandonment of an appeal as a nullity, it must be shown that the Applicant's mind did not go with the abandonment at the time it was made, in other words, he did not really consent to the abandonment. Thus, mistake, undue influence, coercion are some examples of the type of circumstances that must be found to exist.

9. In the present case, we are not satisfied that the 3rd Applicant has reached the requisite threshold. He relies first on his mental state at the time of the abandonment and next, on an allegation that he was pressured by his mother to abandon the appeal. In our view, far from showing that his mental state was such that he did not intend to abandon, the evidence from the 3rd Applicant himself demonstrates not only he knew the effect of what he was doing, but that he fully intended to abandon his appeal. As for the alleged pressure from his mother, although she deposes to the fact that the 3rd Applicant is readily influenced by people, all that seems to have happened was that he took her advice in abandoning the application for leave to appeal. This is far from showing that his mind was not his own. We might add that there was no medical evidence in support of the 3rd Applicant either.

10. We therefore decline to treat the 3rd Applicant's earlier abandonment of his appeal as a nullity. We are of course not without sympathy since the other Applicants have had their convictions quashed on grounds which were equally applicable to him, but we believe the right course is for the 3rd Applicant to make an application to the Chief Executive under section 83P of the Criminal Procedure Ordinance, a course which the Respondent has indicated would be viewed with sympathy on its part.