HKSAR v. YEUNG KAI-KEUNG

[English Translation –英譯本]

HCMA 397/2019

[2019] HKCFI 2826

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 397 OF 2019

(ON APPEAL FROM KCS 7689/2019)

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REASONS FOR JUDGEMENT

1.  The appellant was charged with one count of “Failing to provide the particulars of the driver as required”.[1] He pleaded not guilty and was convicted after trial. He appealed against the conviction.

Appellant deceased by the time of hearing

2.  At the hearing of the appeal, the respondent informed the court that the appellant had passed away days before and produced a copy of his death certificate. The respondent submitted that the court should order that the appeal had terminated and abated because of the appellant’s death.

3.  I agreed with this way of dealing with the appeal and ordered that this appeal and its relevant proceedings had terminated and abated because of the appellant’s death. I now give my reasons.

4.  The appellant lodged an appeal by virtue of section 113(1) of the Magistrates Ordinance[2] which provides as follows: “Any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connection with any offence, who did not plead guilty or admit the truth of the information or complaint, may appeal from the conviction, order or determination, in manner hereinafter provided to a judge.”

5.  From the provision, it can be seen that a person who is the subject of a conviction, sentence or order of a magistrate has a right of appeal. It does not specify what is to be done with the case where the person who lodged an appeal has died.

6.  In HKSAR v Choy Wing Lung Geoffiey Donahue[3], I found that when an appellant who has lodged a magistracy appeal died before the appeal hearing, the court handling the appeal has a discretion to decide whether the appeal should continue or terminate.  The decision must be made upon the consideration of the overall relevant circumstances.

7.  The principles and factors mentioned in HKSAR v Cheng Chee Tock Theodore[4], a decision of the Court of Final Appeal, and HKSAR v Tang Tik Hung[5], a decision of the Court of Appeal, are applicable.

8.  The Court of Final Appeal indicated[6]：

“The Court’s discretion whether to continue a criminal appeal after an appellant’s death must be exercised on a principled basis. Factors relevant to the exercise of the discretion included:

(a)      Whether leave to appeal had been or would be granted: the Court would be guided primarily by this factor. Where leave to appeal was sought on a point of law, this would probably be a critical factor since the grant of leave on that ground would indicate that it was of sufficient importance to be heard by the Court as the final appellate court;

(b)     The existence of an applicant: the existence of a party who wished the appellant’s appeal to be continued and who made an application for such continuation would usually be an essential requirement;

(c)      The continuation of the appeal on a proper adversarial basis: the applicant’s willingness to be substituted as appellant and the continuation of the appeal on a proper adversarial basis with appropriate legal representation so that the issues to be determined were properly argued were relevant considerations. In exceptionally important cases, the Court might appoint an amicus curiae;

(d)     The applicant’s interest in continuing the appeal: the applicant’s reason for wishing to continue the appeal was relevant. If financial interest was relied on, the nature of that interest and its amount were relevant to the weight to be attached. Similarly, the applicant’s interest in restoring the appellant’s reputation might be relevant and the graver the offence of which the appellant was convicted, the more weight this factor would carry.”

9.  The Court of Appeal indicated[7]: “In our view, if a convicted and sentenced person dies after applying for leave to appeal against conviction or sentence, the Court of Appeal retains the discretion to consider all relevant factors before deciding if the application for leave should continue or automatically terminate and abate. We find that [sic] the factors set out at para 51 in the judgment of Cheng Chee Tock Theodore and in Smith[8] most helpful in guiding the court to decide how to exercise the discretion.”

10.  In another case, Lo Siu Kuen v HKSAR[9], the Court of Final Appeal pointed out that even though the appellant has died since the lodging of the appeal, if the conviction is unjust, the court has a discretion to entertain his appeal. In respect of whether or not the discretion should be exercised, it requires a review of the relevant circumstances of the case and the demands of justice.

11.  The present case involved a driver who failed to comply with traffic signals while driving a taxi. There was evidence to show that the management of the taxi was then entrusted to the appellant. Therefore, the Police issued a “Notice Requiring Identification of Driver” (the “notice”) to him under section 63 of the Road Traffic Ordinance[10]. But he failed to provide the particulars of the driver as required after receiving the notice. Then, he was charged accordingly. At trial, he gave evidence on why he failed to provide the particulars, but it was rejected by the magistrate. As he failed to provide the particulars of the driver in the form and at the time as specified in the notice, and he could not prove he had a statutory defence[11], he was found guilty by the magistrate.

12.  In the circumstances of the present case, there was no one representing the appellant who stated that he or she would continue the appellant’s appeal. The appellant’s conviction would no longer affect him or other people. Nor would it affect the interests of justice or any other public interest. Accordingly, I agreed with the submission of the respondent and ordered that the appellant’s appeal and the relevant legal proceedings had terminated and abated by reason of his death.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law