HKSAR v. CHAU KWOK HUNG

CACC 67/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 67 OF 1996

(ON APPEAL FROM HCCC 259 OF 1995)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Background to application to treat abandonment of earlier application as a nullity

1. On 19 January 1996, the Applicant was convicted, following a trial in the High Court before Keith J (as he then was) and a jury, of trafficking in a crystalline solid containing approximately 2.94 kg. of methamphetamine hydrochloride (ice).

2. The allegation came about as the result of the Applicant being intercepted by Customs Officers at Kai Tak Airport. He and a fellow passenger were both found to be wearing a girdle and shin supporters under their clothing which concealed four bags of ice on each of them. This evidence is clearly demonstrated in a series of photographs that were taken.

3. In a form that was dated 29 January 1996, the Applicant lodged notice of his intention to seek leave to appeal against conviction and sentence. On 12 July 1996, Legal Aid was refused in respect of conviction but granted so far as sentence was concerned.

4. The applications were due to be beard together on 18 July 1996, but the Applicant did not pursue his application relating to conviction and the court therefore dismissed that application. The application relating to sentence, in which the Applicant was represented by experienced counsel, resulted in the court reducing the Applicant's term of imprisonment to 13 years for reasons which emerge from the judgment given on 18 July 1996 in CACC 67/96. The reasons have no relevance to the present proceedings.

Applicant's affirmation

5. Almost 3 1/2 years later, the matter has now returned to this court as an application to treat the abandonment of the application for leave to appeal against conviction as a nullity. In support of the application, the Applicant signed an affirmation, dated 30 June 1999, in which he set out his reasons for abandoning his earlier application. Amongst other things, he stated that when he was refused Legal Aid, his family was only able to raise $30,000. This, he understood, was apparently enough to cover only an application relating to sentence. Counsel who saw the Applicant informed him that he would be able to conduct his conviction application in person if he so desired. The Applicant was, according to him, given no advice on the merits of the application in relation to conviction. In his affirmation, the Applicant went on to state that he felt "forced to abandon" his appeal because he did not know much about the law. However, more recently the Applicant saw articles in newspapers which gave him some hope of success because other cases were reported which were similar to his own, where appeals had been successful. He informed his family who discussed the matter with lawyers and, by December 1998, his family had raised sufficient funds to brief counsel.

Submissions on behalf of the Applicant

6. Mr Mitchell-Heggs made his submissions without the benefit of a written argument, which on 5 October 1999 the court directed should be provided at least ten days before the hearing, and without the benefit of any legal authority to support his argument that the particular circumstances of this case would enable the Court to treat the abandonment of the earlier application relating to conviction as a nullity.

7. He began by submitting that when the Applicant was stopped at Kai Tak, he should immediately have been cautioned once the Customs Officer realised that he was carrying something attached to his body. The damaging answer given by the Applicant to the Customs Officer was the subject of dispute at trial and the judge dealt admirably with both sides of that argument in the course of his summing up.

8. Mr Mitchell-Heggs' point was that the absence of a caution amounted to oppression and that a situation similar to that in Thongjai and another v The Queen (1997) 2 HKC 109 had arisen, albeit a long time before the judgment in that case had been delivered. Mr Mitchell-Heggs made no criticism whatsoever of counsel in the way that the case was advanced at trial, and it is clear that the trial counsel conducted the case with very great skill on this aspect which we have focused upon.

Principles in R v Medway considered

9. The view taken by this court is that nothing in the Applicant's affirmation provides any basis for treating the abandonment of his original application (or the dismissal of that application) as a nullity.

10. In R v Medway (1976) Crim. App. R. 85, the English Court of Appeal had to decide, in the first of two questions that they were considering, it having been conceded that the court had jurisdiction to allow a notice of abandonment of an application for leave to appeal to be withdrawn, what conditions had to be satisfied for the exercise of that jurisdiction. The court, at p.98 of the judgment, following an exhaustive review of existing authority, answered in the following terms:

"The answer to the first question which we have to decide depends upon whether alongside the jurisdiction which undoubtedly, as all authorities show, exists to give leave to withdraw an abandonment where it is shown that circumstances are present which enable the Court to say that that abandonment should be treated as a nullity, there co-exists an inherent jurisdiction, in other special circumstances, enabling the Court to give such leave.

We are satisfied and hold that there is no such jurisdiction. In our judgment the kernel of what has been described as the 'nullity test' is that the Court is satisfied that the abandonment was not the result of a deliberate and informed decision, in other words that the mind of the applicant did not go with his act of abandonment. In the nature of things it is impossible to foresee when and how such a state of affairs may come about; therefore it would be quite wrong to make a list, under such headings as mistake, fraud, wrong advice, misapprehension and such like, which purports to be exhaustive of the types of case where this jurisdiction can be exercised. Such headings can only be regarded as guide lines, the presence of which may justify its exercise."

11. The Hong Kong Court of Appeal, in R v Chan Tak-kwong, Crim. App. 134/83, stated that it considered itself bound by the principles set out in Medway and, more recently, these principles were again followed in HKSAR v Wong Wai-yip, Crim. App. 287/95.

Grounds of appeal heard de bene esse

12. In order to determine whether any basis existed for an argument that the abandonment in the present circumstances should be treated as a nullity, we heard de bene esse about the amended perfected grounds of appeal which were to have been advanced. These are effectively divided into two.

13. Firstly, it was complained that there was no determination by the Judge in relation to admissibility as to the voluntariness of the oral admission allegedly made by the Applicant and that, in any event, because of the absence of a caution, it should not have been admitted.

14. As there has been no allegation of incompetence on the part of counsel, there can be no basis for the complaint made on the first ground. Counsel for the Applicant made it clear at a pre-trial review that the oral admission said to have been made by the Applicant would be challenged and it is apparent that at trial it was strongly challenged. Counsel has a wide discretion as to how to run his case. The judge was never invited to exclude the answer. Counsel appears to have applied his mind to this aspect and to have taken a course which he was perfectly entitled to take. It was never suggested that any form of physical oppression took place to make the Applicant answer in the way that he did. The question to be decided was not in any way concerned with voluntariness but rather with whether the answer was ever given at all. This was a matter for the jury. Accordingly, Thongjai (above) has no bearing upon the present case.

15. The other ground of appeal was this:

"There was a material irregularity during the trial in the manner in which evidence of previous statements of the co-accused (defence witness) Chi Pak-keung as Defence Exhibits: D3, D4 and D5 were admitted into evidence in that:-

(i) They were apparently admitted in examination-in-chief as defence exhibits and, as such, were self-serving, not probative, and should not have been allowed to be introduced by the Defence in this way."

It is unnecessary to deal with what follows in this ground of appeal.

16. Again, no criticism is made of defence counsel. The way in which defence counsel ran this aspect of the case was, again, entirely a matter for him. However, at these proceedings, Mr Mitchell-Heggs described this ground of his appeal as a "make-weight". We wish to make it quite plain that make-weight grounds, which are effectively a complete waste of the court's time, have no place whatever in appellate proceedings, and we remind counsel of what is set out in the Practice Direction relating to criminal appeals to the Court of Appeal. Paragraph No. 5 states that where counsel settles grounds of appeal, it is his duty to ensure that grounds are not put forward unless they are reasonable, i.e. they afford some real chance of success. We need say no more than that the third ground of appeal never stood any chance of success as Mr Mitchell-Heggs has effectively conceded today.

Conclusion

17. Returning, therefore, to the nature of the present application, we have had to ask ourselves whether it may be that the mind of the Applicant did not go with his act of abandonment. It is clear to us from the terms of the affirmation given by the Applicant, where he stated he was forced to abandon his appeal because he did not know much about the law or the procedures of appeal, his family having failed to raise sufficient funds to represent him on an appeal against conviction, that this amply demonstrates his mind went with the act of abandonment. It might have been different if he had been misled by wrong legal advice to abandon a perfectly valid ground of appeal as occurred in Wong Wai-yip (above) but, as we have indicated, there was in any event no merit to this application.

18. For the reasons we have given, we shall not give leave to treat the abandonment of the previous application for leave to appeal as a nullity. The application is dismissed.