LEUNG WAI LUN v. HKSAR

FAMC No. 40 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 40 OF 2003 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 522 OF 2000)

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D E T E R M I N A T I O N

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Chief Justice Li :

1. On 21 November 2000, after trial by jury, the applicant was found not guilty of murder and was convicted of manslaughter.  On 6 December 2000, he was sentenced to life imprisonment.

2. On 2 May 2003 and 15 August 2003 respectively, the Court of Appeal dismissed his appeal against conviction and sentence.

3. He sought leave to appeal to the Court.  On 11 November 2003, the Appeal Committee dismissed his application for leave.

4. On 30 December 2008, the applicant lodged the present application again seeking leave to appeal against the judgment of the Court of Appeal on the substantial and grave injustice limb.  The grounds relied on are that the trial Judge had misdirected the jury in describing the workings of a jury as very much like a board of directors having a meeting and in referring to a verdict of four-three being unacceptable.  These grounds had not been advanced before the Court of Appeal or the Appeal Committee on his previous application for leave.

5. By 30 December 2008, when the applicant lodged his present application for leave, over five years had elapsed since the Court of Appeal’s judgment and the Appeal Committee’s determination.

6. In her affirmation, the applicant’s sister stated that in early 2008, she had learnt from newspapers that the Court had ruled that a judge’s direction to a jury that a verdict of four-three is not good enough was a misdirection and had quashed the conviction.  The same Judge had presided at the applicant’s trial.  She perused the transcript of the applicant’s trial and discovered that there had been a similar direction.  The applicant’s efforts to obtain legal aid were unsuccessful.  In November 2008, solicitors were instructed by the applicant with private funds to lodge the present application.

7.  Section 31 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that an appeal shall, at the Court’s discretion, lie to the Court in a criminal cause or matter at the instance of any party to the proceedings from any final decision of the Court of Appeal.  The power of the Court to hear and determine any application for leave to appeal shall by exercised by the Appeal Committee whose decision shall be final and not subject to appeal.  Sections 18(2) and 18(3).

8.  Mr Patrick Cheung for the respondent in his helpful submissions contended that, bearing in mind the principle of finality to legal proceedings, the intent of s. 31 is that there should only be one appeal and one application for leave to appeal and that there is therefore no jurisdiction to entertain the applicant’s present application for leave.  Mr Cheung referred to R v Pinfold [1988] 1 QB 462.  The English Court of Appeal construed the relevant provisions in the Criminal Appeal Act 1968 to mean that there should only be one appeal against conviction to that court.  Lord Lane CJ (at 464F) referred to two exceptions or apparent exceptions.  First, where the decision on the original appeal can be regarded as a nullity.  Secondly, where owing to some defect in the procedure, the appellant has on the first appeal being dismissed suffered an injustice “where for example he has not been notified of the hearing of the appeal or counsel has been unable to attend, circumstances such as that.”

9. As was stated by Bokhary PJ in the Appeal Committee’s determination in Choi Man Wai v. HKSAR [2001] 4 HKC 641 a second application for leave after dismissal of the first is misconceived.  And anyone making such an application can expect it to be dealt with under r7 of the Hong Kong Court of Final Appeal Rules.

10. It is unnecessary in the present case to decide whether, and if so the circumstances in which, there is jurisdiction to entertain a second application for leave to appeal in a criminal case, after dismissal of the original application.  Plainly, it is in the interests of society for there to be finality in the criminal process.  See HKSAR v. Hung Chan Wa (2006) 9 HKCFAR 614 at para 21.  Assuming such a jurisdiction exists, it would be a wholly exceptional one and the occasions on which the circumstances would justify its exercise would be rare in the extreme.

11. On any view, it is plain that there are no such circumstances here.  It is true that the first case when the Court held that a direction drawing an analogy between a jury and a board of directors is inappropriate and discussed the proper approach to directions on majority verdicts was HKSAR v. Tam King Hon (2006) 9 HKCFAR 206 decided on 6 April 2006.  It should be noted that the Court of Appeal had earlier in its judgment handed down on 7 January 2005 expressed similar views in HKSAR v. Chan Ka Man [2005] 1 HKC 162.  But it had been open to any applicant to take these points well before April 2006 and indeed before January 2005.

12. Further, a very long time had elapsed since the applicant’s appeal to the Court of Appeal was dismissed in August 2003.  It should be observed that, having regard to such a long lapse of time, even if there had been no previous application for leave to appeal to the Court, extension of time for the application for leave would not have been granted in the present case.

13. Accordingly, the application for leave is dismissed.