CHAU CHING KAY, NAUTHUM v. HKSAR

FACC No. 2 of 2002

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 2002 (CRIMINAL)

(ON APPEAL FROM CACC NO. 505 OF 2000)

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J U D G M E N T

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Mr Justice Bokhary PJ:

1. I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Chan PJ:

Introduction

2. The appellant was convicted after trial in the District Court (Judge W Wong) of three charges, one of burglary (1st charge) and two of attempted burglary (2nd and 3rd charges). He was sentenced to 3 years imprisonment in respect of the 1st charge and concurrent sentences of 21/2 years each in respect of the 2nd and 3rd charges. The concurrent sentences were ordered to commence after he has served 11/2 years for the 1st charge, thus making a total sentence of 4 years.

3. Before the Court of Appeal (Leong CJHC, Woo JA and Yeung J), the appellant abandoned his application for leave to appeal against conviction on the 3rd charge and withdrew his application for leave to appeal against sentence. His application in relation to the conviction on the 1st and 2nd charges was dismissed. Pursuant to s.83W of the Criminal Procedure Ordinance, Cap 221, the Court of Appeal directed that a period of 3 months during which the appellant had served pending the determination of his appeal shall not be reckoned as part of the term of his sentence. In other words, the court ordered a loss of time for 3 months.

4. The present appeal concerns only the conviction in respect of the 1st and 2nd charges and the order for loss of time. The Court of Appeal had previously certified a point of law of great and general importance in relation to the order for loss of time. Four points of law were later certified by the Appeal Committee: one in relation to his conviction and the other 3 in relation to the order for loss of time (which are a re-formulation of and substitution for the point of law certified by the Court of Appeal). If he should fail in his appeal against conviction and the 3 points of law in relation to the order for loss of time, the appellant also seeks to argue that in the circumstances of this case, he has suffered substantial and grave injustice as a result of the order for loss of time.

The confession statements

5. The main evidence against the appellant in respect of the 1st and 2nd charges came from confession statements which, the police alleged, were made by the appellant. The admissibility of these statements was challenged at the trial. After holding a voir dire, the trial judge was satisfied that the statements were made by the appellant voluntarily and admitted them in evidence. This ruling was not disturbed by the Court of Appeal.

6. The facts and circumstances leading to the arrest of the appellant and his girlfriend for the 3rd charge are not material to this appeal. They are only relevant in setting the scene for the appellant's conditional offer to the police to make a confession. For the present purpose, it is sufficient to note that the appellant and his girlfriend were seen by patrolling police officers to have gained entry into a building and found attempting to prize open the door of a domestic unit on the 2nd floor. They were arrested there and then.

7. The confession statements in question were said to have been made by the appellant when he was arrested with his girlfriend and when he was under inquiry by the police after they were brought back to the police station. The arresting officer alleged that when he declared arrest on the appellant and after he had verbally cautioned him, the appellant replied:

"As I am caught red-handed, if my girl friend is released, I can cooperate with you. I can tell you the two jobs I did a few days ago."

8. This was recorded by the officer in his notebook in the presence of the appellant when they were back at the police station. The appellant was then asked by the officer some further questions arising from what he had said. These questions and answers were also recorded in the notebook. In answer to the question: "Earlier on you told me you did two jobs a few days ago. What did that mean?", the appellant was alleged to have said the following:

"The first job was about four days ago, further up from Shelley Street, Central, on floor no. 2 of the building where there was decoration work downstairs, I entered a flat and took some foreign currency. Later, I exchanged it for about HK$1,060. The second job was in Seymour Terrace, on floor no. 3 of a building where the street number I cannot recall. I entered the flat and took a video camera which I sold for about HK$3,000. Then I used a crowbar to prize the main door of a flat on floor no. 2 but did not gain entry."

9. These confession statements formed the basis of the conviction in relation to the 1st and 2nd charges. The truth of these statements was to some extent supported by the evidence of the victims of two of the burglaries mentioned in the statements, although the appellant alleged that it is not surprising to find similarities since the contents of the statements could have come from the police who must have known what the victims had said.

10. The appellant was later interviewed by the police, such interview being recorded on video. At the start of the interview, the appellant asked to see a lawyer. The interview was then stopped. It was resumed after the arrival of his lawyer. During the resumed interview, the appellant was recorded as having said, among other things, that the police had promised to let him have a lawyer and to allow his girlfriend bail if he admitted two other offences, that he had agreed to this suggestion and that he signed on the statements only after they were written out by the officer. He also accepted that he had told the police that he had committed 3 other offences in Shelley Street and Seymour Terrace respectively four days before his arrest, giving some detail of what he had done and what he had stolen.

Trial judge's ruling on admissibility

11. At the trial, the appellant was not legally represented. The allegations which he made to challenge the admissibility of his confession statements were that he had been threatened and induced into making these statements by the officers who said that if he co-operated with them and admitted 2 other offences, they would let him have a lawyer and release his girlfriend, but if he did not, they would make life difficult for him and his girlfriend. He also alleged that the contents of these statements were written by the officers and that he signed without knowing what was written down. He gave evidence to substantiate his allegations which were denied by the prosecution.

12. It was not the appellant's case that he made a conditional offer to confess and that the police had by conduct accepted his offer, thus inducing him into making the confession statements in question.

13. In his ruling on the admissibility of the confession statements, the judge said that he had carefully considered the appellant's reply to caution at the time of the arrest and the evidence relating to the post records and that he believed that the prosecution had proved beyond reasonable doubt that the oral statement of the appellant and the post records were made voluntarily. In coming to this conclusion, the judge had apparently rejected the evidence of the appellant.

14. Before the Court of Appeal, the appellant who was then represented by junior counsel contended that even accepting the prosecution evidence, since the police did not tell him whether they would accept or reject his conditional offer to confess, the confessions which he subsequently made were not voluntary. This argument was not accepted by the Court of Appeal.

Point of law re conviction

15. The point of law of great and general importance in relation to conviction arises from the rejection of this argument. The point was framed in the following way:

"Whether silence by a person in authority in the face of a conditional offer to make a confessional statement can amount to an inducement to confess and whether an issue in that regard at the trial requires a finding of fact?"

16. It is conceded by the prosecution, and this is not disputed by the appellant, that silence in the face of a conditional offer to make a confession statement can, in some circumstances, amount to conduct constituting an inducement and that whether it does or not must be determined on a case by case basis. In rejecting the appellant's allegations, the judge had ruled out express inducement. What the appellant is complaining of is that the judge had not ruled out the possibility of "implied inducement". The dispute between the parties in this appeal boils down to this:

(1) had the judge dealt with the issue of "implied inducement" and should he have made a specific finding on this issue; and

(2) whether the conduct of the police officers amounted to an inducement to confess and had induced the appellant to confess.

"Implied inducement"

17. Ms Audrey Eu, SC, leading Mr Wong Po Wing, for the appellant, submits that even if the judge had rejected the appellant's allegations of threat and inducement, the prosecution had failed to show beyond reasonable doubt that the appellant's confession statements were not obtained as a result of "implied inducement". The judge, it is argued, did not deal with this and had failed to make a specific finding whether there was any such inducement. On the prosecution's evidence which was accepted by the judge, there was, counsel argues, an "implied inducement" held out by the police:

(a) the appellant made an offer at the time of arrest to confess to two other offences on condition that the police would release his girlfriend and allow him to have a lawyer;

(b) instead of giving him an answer one way or another, the police questioned him on what he had said; and

(c) such questioning gave rise to the impression on the part of the appellant that his conditional offer had been accepted or was at least being seriously considered and had the effect of inviting the appellant to confess.

18. Such conduct on the part of the police officers, it is submitted, must have caused the appellant to confess since there was no obvious reason for the appellant to confess as he did and this contention is supported by the judge's comment that he believed that the appellant volunteered the confessions because he wished to save his girlfriend. Counsel relies on R. v. Chan Yip-kan [1986] HKC 35 which, she submits, was similar to the present case and where the appeal was allowed.

19. Mr Saw SC, leading Mr Zervos and Mr Lee for the prosecution, on the other hand, submits that "implied inducement" was not a live issue which required the judge to deal with since it was not the case of the appellant that there was an "implied inducement". There was no factual basis for such issue and hence the judge did not have to consider it. But in any event, it is implicit in the conclusion reached by the judge that he had applied his mind to whether there was any inducement held out by the police, be it express or implied. One of the crucial issues to consider when dealing with a challenged confession statement is what it is that has motivated the decision on the part of an accused to confess and whether that motive to confess is self-generated or not. It is argued that the appellant's motive to confess was to assist his girlfriend, but this was self-generated and had nothing to do with what the police officer did or did not do. The judge would have rejected the allegation of "implied inducement" anyway and ruled the statements admissible.

20. The voir dire was conducted on the basis of the allegations made by the appellant, that is, he was expressly threatened and induced into making the confession statements. The judge's mind was directed to these particular allegations and that was the basis of his ruling. In the brief reasons which he gave, there was no reference to any "implied inducement".

21. The expression "implied inducement" used by counsel in this case is not found in the books dealing with the subject of confessions in the criminal law. In Hong Kong, it appears to have crept into the vocabulary of lawyers as a result of a decision of the Court of Appeal in Chan Yip-kan, where at 37E, Huggins VP said that the manner and circumstances of the making of the statement showed that there might be an implied promise that the suspect might be accepted as a Crown witness. But, as the rest of the judgment makes clear, what turned the scales in the appellant's favour was the conduct of the inspector taking the statement. Where inducement is raised as an issue, it is the conduct of the person in authority, either in the form of anything said or done or some express or implied promise, which is to be examined in the light of all the circumstances of the case to see whether one can conclude as a matter of fact or inference that there is any inducement. Silence, or failure to give a direct answer in the case of Chan Yip-kan, is part of the conduct which is to be considered.

Had trial judge dealt with inducement by conduct

22. It is settled law that a confession statement may be admitted in evidence if it was made voluntarily in the sense that it has not been obtained from an accused either by fear of prejudice or hope of advantage excited or held out by a person in authority or by oppression. Secretary for Justice v. Lam Tat Ming & another (2000) 3 HKCFAR 168; Ibrahim v. R. [1914] AC 599; DPP v. Ping Lin [1976] AC 574; and R. v. Lam Yip Ying [1984] HKLR 419. Where a confession statement is held to have been made voluntarily, the court still has a residual discretion to exclude it to preserve the fairness of the trial. R. v. Sang [1980] AC 402.

23. The burden is always on the prosecution to prove beyond reasonable doubt that a confession statement was made voluntarily. It is not for an accused to show that it was not. Even if his allegations are rejected by the trial judge, as was the case with the appellant, the judge has still to be sure that it was a voluntary confession before admitting it in evidence. If he has any doubt, then the statement must be excluded. He has no discretion.

24. Where it is alleged that an accused was induced by the police to confess, the trial judge has to be satisfied beyond reasonable doubt that the confession was not extracted by inducement. This is so even if this was not the case of the accused. See for example Thongjai & Anor v. R. [1997] 2 HKC 109; and Chan Yip Kan.

25. A judge is not obliged to give reasons for making a ruling on the admissibility of a confession statement. However, there may be occasions where good practice requires a reasoned ruling, such as, where there is a question of law or there is an exercise of a discretion. See Wallace and Fuller v. R. [1997] 1 Cr. App. R. 396. Also Thongjai, at p.114B where it is considered desirable to give brief reasons when ruling a confession statement inadmissible since such reasons may assist in clarifying the issues should there be an appeal.

26. When a trial judge, applying the correct principles on the admissibility of confession statements as stated above, holds that he is satisfied the prosecution have proved beyond reasonable doubt that an accused's confession statement was made voluntarily, this would usually be understood to mean that he is sure that the confession was not obtained from the accused as a result of use of violence, threat or inducement.

27. If it is clear from the evidence adduced before a trial judge that inducement does not arise or is unlikely to arise as an issue, the conclusion that he is satisfied beyond reasonable doubt that the confession statement was made voluntarily would be sufficient without expressly dealing with it. Where, as in this case, there is evidence sufficient to raise the issue whether what the police officers had done or omitted to have done might have the effect of inducing the accused to confess, the prosecution have to show that the confession was not induced by the conduct of the police, and the judge has to be sure that the prosecution have succeeded in doing so. His conclusion that he is satisfied beyond reasonable doubt that the confession was made voluntarily would mean that he was satisfied that the conduct of the police did not amount to an inducement.

28. The Court of Appeal in the present case had apparently thought that the issue of "implied inducement" was not raised before the trial judge and that the judge had not dealt with it. Assuming that to be the case, the question which then arises for consideration is whether, had the judge done so, it could be said that he would have drawn the same conclusion that the appellant's confession statements were made voluntarily.

Approach to be adopted

29. In deciding whether to admit a confession in evidence, a trial judge should apply the test "in a common sense way to all the facts in the case in their context much as a jury would approach it if the task had fallen to them." See Lord Hailsham of St. Marylebone in Ping Lin at p.600 D.

30. Where it is alleged that a confession statement has been extracted by an inducement, whether by things said or done or by some express or implied promise, the question is whether any conduct on the part of a person in authority amounts to an inducement which is capable of influencing and did influence an accused. This involves a two stage approach. A trial judge has to consider: (1) whether there is any conduct on the part of the person in authority which is capable of constituting an inducement, that is, something which is capable of influencing the mind of the accused, and (2) whether the prosecution have proved beyond reasonable doubt that such inducement had not influenced the mind of the accused. The first involves an examination of the conduct of the person in authority and the second the effect of such conduct on the accused.

31. In R. v. Northam (1968) 52 Cr. App. R. 97, the appellant suggested to the police that if he admitted participation in one offence, he would be allowed to have it taken into consideration at his forthcoming trial for some other similar offences rather than have it made the subject of a separate charge. This suggestion was accepted by the police. The Court of Appeal held that this was an inducement which was capable of affecting the mind of the appellant (although he might have misunderstood the nature of the inducement) and that it had in fact induced the confession in that case. It said at p. 103:

" ... whereas in the case of inducements by persons in authority, in particular police authority, the question was, was any offer or promise made which was capable of constituting an inducement, as distinct from one which in fact induced?"

32. In Wilson & others v. R., unreported, Criminal Appeal No. 918 of 1977, 12 May 1978, the Hong Kong Court of Appeal said:

" We have ... considered anxiously whether there was anything in the conduct of the various interviews capable of constituting an inducement to this appellant to make a statement ..." (p.10)

"Such a conclusion involved two stages: first it had to be decided whether the conduct was capable of amounting to an inducement and, second, if it was so capable whether the prosecution had shown that such inducement had not operated on the mind of the third appellant." (p.11)

33. In R. v. Houghton & another (1979) 68 Cr. App. R. 197, which was a case involving the prosecution of an informer using materials which he had provided, Lawton LJ said at p. 204:

"What the Crown cannot do is to prosecute him on the evidence which he has himself provided if he was induced to provide it by any offer of advantage made by a person in authority or by conduct on the part of the police which could reasonably have aroused in him an expectation of advantage."

34. If the conduct of the person in authority does not amount to anything which is capable of constituting an inducement, that is the end of the matter. If it does, it is necessary to consider whether the inducement had influenced the accused into making the confession. The two questions are related and very often dealt with together. This has sometimes led to a confusion as to the test to be applied. It is in relation to the possible influence of an inducement on an accused that Winn LJ in Northam proposed the criterion of an average, normal, probably quite unreasonable person in the position of the accused. He said at 104:

"It is not the magnitude, it is not the cogency to the reasonable man or to persons with such knowledge as is possessed by lawyers and others which is the proper criterion. It is what the average, normal, probably quite unreasonable person in the position of the appellant at the time might have thought was likely to result to his advantage from the suggestion agreed to by the police officer."

35. This was adopted by Huggins VP in Chan Yip Kan at p.38F. It is clear that the state of mind of the accused is relevant. After all, the court has to decide whether the inducement had in fact influenced him into making a confession, giving some allowance to him for being in the situation he finds himself. Ultimately, as Lord Hailsham said in Ping Lin, it is a matter of applying common sense to all the facts in the case.

36. In considering whether any conduct on the part of a person in authority amounts to an inducement which is capable of influencing an accused and whether such inducement had influenced his mind, it is important not to lose sight of the basic principle that there must be a fear of prejudice or hope of advantage excited or held out by the person in authority to the accused. It is not material that the person in authority did not intend to hold out such fear or advantage to the accused. See Lim Tit Seng at p. 413B. However, it must be something which would operate on the mind of the accused in order to make him confess, that is, he would not otherwise have made his confession.

37. Where, as in this case, the accused has made an offer to confess in return for an advantage to himself, his friends or relatives, the conduct on the part of the person in authority must be conduct which in the circumstances of the case is capable of being reasonably understood to be either an acceptance of the offer made by the accused or a promise of an advantage made by the person in authority. For if the conduct is not capable of being so understood, this is a strong indication that the accused's motive to confess was self-generated (even assuming that he is an average, normal or probably quite unreasonable person) and not the result of the conduct of the person in authority.

Any inducement and whether it influenced the appellant

38. The facts in the case of Chan Yip Kan, which is relied on by the appellant, are distinguishable from the present case. There the accused offered to act as a prosecution witness. He was then taken before an inspector to whom he made the same offer. The inspector had apparently given him some answer although not a direct one. The accused was cautioned and in response to the questioning, confessed to the offence. In the circumstances of that case, the conduct of the police, particularly that of the inspector, was capable of being reasonably understood as amounting to an acceptance of the accused's offer to turn Crown witness and an inducement to him to confess.

39. In the present case, after the appellant had made his conditional offer, the police did not tell him whether his offer would be accepted or rejected. Nor did they tell him that they would have to consider any statement which he might make before deciding whether to accept or reject his offer. Without giving him any answer at all, they recorded what he had said at the time of the arrest and further questioned him. Such conduct on the part of the police is not to be considered alone but has to be examined in the light of all the circumstances.

40. It was the appellant who first volunteered the information that he had done two other "jobs" as part of the offer. After he had made that offer to the officer, his girlfriend, instead of being released, was taken to the police station together with him. There is no evidence that he had asked the police why this was the case. Nothing else happened in the meantime. After his offer had been recorded in the police notebook and read over to him, he was told that he could alter, delete or add anything he wished. He did not. The officer told the appellant that he the officer wanted to put further questions to the appellant "for clarification purpose". The appellant's offer was not mentioned. The officer then reminded him of his caution before further questioning him. The appellant acknowledged in his own handwriting that he knew he did not have to say anything. The officer did not follow up on the appellant's offer by asking, for example, "what have you got to tell us?" but instead asked him what he meant by "two other jobs". The appellant did not raise his offer again before he gave details of the two other offences. After the details had been written down, the appellant was asked again whether he wished to alter, delete or add anything. He confirmed that what was written down was accurate. At no stage did the appellant raise with the officer any question about his offer or press for an answer. During the subsequent video interview, he requested the presence of a lawyer before the interview continued. In the resumed interview, he said he would like to have a lawyer and to have his girlfriend released, but did not mention the offer which he had made. Even in the presence of his lawyer, he admitted that he had given details of two other offences, but made no reference to the offer.

41. In my view, the evidence is overwhelming. It is clearly not consistent with any suggestion that the appellant's conditional offer was accepted or being considered by the police. It cannot be said that the police had held out anything to the appellant or done anything to invite him to confess. There was simply no inducement.

42. The appellant's own behavior was also not consistent with having the impression that the police had accepted his offer or that his offer was a live issue. He might, as the judge said, have wished to save his girlfriend. But that was his own motive. It cannot be said to have been the result of what the police had done or omitted to do. It is therefore irrelevant. See R. v. Rennie [1982] 1 All E.R. 385. All he could hope for was a favourable answer to his offer but he had no right to expect that any answer would be given to him. If he had been serious about his offer, he could have insisted on getting an answer before he decided whether to confess or not. It was up to him to decide whether to remain silent or to confess, facing the consequences thereof.

Conclusion re appeal against conviction

43. I am of the opinion that even assuming that the judge had not applied his mind to the issue of "implied inducement", he would have come to the same conclusion if he had, that is, the appellant's confession statements was made voluntarily and not the product of any implied promise.

44. For the reasons given above, the conviction must be upheld and the appeal must be dismissed.

Events after appellant's conviction and sentence

45. After the appellant was convicted and sentenced, he lodged an application to the Court of Appeal for leave to appeal against both conviction and sentence. He applied for legal aid. The Legal Aid Department considered his case and decided to grant him legal aid to pursue only his appeal against conviction in relation to the 1st and 2nd charges. He was left to handle on his own the application for leave to appeal against his conviction on the 3rd charge and against sentence. The perfected grounds of appeal against conviction on the 1st and 2nd charges were drafted by counsel and filed on his behalf. Those grounds were put forward after consultation between counsel and the Legal Aid Department.

46. At the beginning of the hearing before the Court of Appeal, but prior to submissions by counsel, the court warned the appellant of the risk of loss of time under s.83W of the Criminal Procedure Ordinance. The hearing was then adjourned briefly to enable counsel to explain the warning to the appellant. After the adjournment, counsel informed the court that prior to the hearing, the appellant had already decided to abandon his application for leave to appeal against conviction in respect of the 3rd charge and he also wished to withdraw his application in respect of sentence. However, counsel reported to the court that the appellant would like to proceed with his application for leave to appeal against conviction on the 1st and 2nd charges and wished his counsel to present his case to the court.

47. After hearing submissions from both counsel for the appellant and for the prosecution, the court reserved its decision. Six days later, the court handed down judgment dismissing the application for leave to appeal against conviction on the 1st and 2nd charges. In that same judgment, the court ordered loss of time for three months. The reason given for making such order was that the appellant had been given sufficient warning of the risk of proceeding with any unmeritorious application for leave to appeal. The first warning appeared in the statutory form of the application for leave to appeal. It was in both languages. The 2nd warning was the one given by the court at the beginning of the hearing. The court considered that there was absolutely no merit in his leave application and decided to exercise its discretion under s.83W and made the order for loss of time.

Points of law re sentence

48. The appeal to this Court against sentence is focused on the order for loss of time. The 3 questions of law certified by the Appeal Committee relate to different aspects of the procedure to be adopted in the exercise of the court's discretion under s.83W of the Criminal Procedure Ordinance. These points of law involve a consideration of (1) the construction of the relevant provisions in the Criminal Procedure Ordinance to see whether a separate leave application before a single judge is required (the first point); (2) the constitutionality of an order for loss of time where it is made without a separate leave application before a single judge as a derogation of the right of appeal under art.11(4) of the Bill of Rights (the second point); and (3) the procedure to be adopted before the Court of Appeal when it contemplates making an order for loss of time, that is, whether an unsuccessful applicant should be given an opportunity to be heard before the order is made (the third point).

49. For the purpose of the present appeal, it is not necessary now to deal with these 3 points of law at great length or come to any conclusion on all the issues raised by them. This is because counsel for the appellant has indicated to this Court that she is no longer arguing that a separate leave application before a single judge is a prerequisite for the making of an order for loss of time, or that without a separate leave application before a single judge, an order for loss of time would be unconstitutional as contravening art. 11(4) of the Bill of Rights, or that an order for loss of time can never be made without first giving an opportunity to be heard to an appellant.

50. What counsel is now arguing is this. Art.11(4) of the Bill of Rights provides that everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. It is accepted that an order for loss of time can be imposed in appropriate cases, but such an order should not be made in such a way as to amount to a derogation of the right of appeal. The order for loss of time is tantamount to a penalty which has the effect of deterring convicted persons from exercising their right of appeal. Such penalty should only be imposed in circumstances where it is clear that the convicted person should be punished, for example, where he refuses to take legal advice from his lawyers or after a single judge had refused his application for leave.

51. It is submitted that the right of appeal should be safeguarded in 3 ways: (1) through the procedure of a separate leave application before a single judge whose opinion on the merits of the case would benefit the convicted person in deciding whether to proceed with his appeal or not; (2) if the convicted person has acted on legal advice in pursuing his leave application, he should not be penalized by an order for loss of time if his leave application is subsequently held to be unmeritorious; and (3) if the court contemplates making an order for loss of time, the convicted person should, in accordance with the rules of natural justice, be given an opportunity to make submissions before the court makes such an order. Counsel submits that absence of one or more of these safeguards would have the effect of derogating from the right of appeal.

Relevant provisions

52. The relevant parts of s.83W of the Ordinance read as follows:

"(1) The time during which an appellant is in custody pending the determination of his appeal shall, subject to any direction which the Court of Appeal may give to the contrary, be reckoned as part of the term of any sentence to which he is for the time being subject.

(2) Where the Court of Appeal gives a contrary direction under subsection (1), it shall state its reasons for doing so; and it shall not give any such direction where -

(a) leave to appeal has been granted; or

(b) a certificate has been given by the judge of the court of trial under section 82; or

(c) the case has been referred to it by the Chief Executive under section 83P."

53. For the present purpose, two other provisions are also relevant. They are:

Section 82

"(1) A person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction.

(2) The appeal may be-

(a) on any ground which involves a question of law alone; and

(b) with the leave of the Court of Appeal, on any ground which involves a question of fact alone, or a question of mixed law and fact, or on any other ground which appears to the Court of Appeal to be a sufficient ground of appeal;

but if the judge of the court of trial grants a certificate that the case is fit for appeal on a ground which involves a question of fact, or a question of mixed law and fact, an appeal lies under this section without the leave of the Court of Appeal."

Section 83Y

"(1) The powers of the Court of Appeal under this Part which are specified in subsection (2) and the power to give directions under section 156(5) of the Crimes Ordinance (Cap. 200) may be exercised by a single judge in the same manner as they may be exercised by the Court of Appeal and subject to the same provisions.

(2) The said powers are the following-

(a) to give leave to appeal;

... ...

(g) to give directions under section 83W(1);

(3) If the single judge refuses an application on the part of an appellant or applicant to exercise in his favour any of the powers above specified, the appellant or applicant shall be entitled to have the application determined by the Court of Appeal;

(4) The references in this section to a single judge are to a single judge of the Court of Appeal or of the Court of First Instance."

Effect of these provisions

54. In my view, the effect of these provisions is this. A convicted person has a right to appeal to the Court of Appeal against his conviction and sentence, but leave of the Court of Appeal is required unless he relies on a ground of appeal which involves a question of law alone or unless a certificate is granted by the trial judge. Where leave to appeal is required, a single judge of the Court of Appeal or Court of First Instance is empowered to hear the application for leave and exercise the same power to grant leave as the Court of Appeal. If a single judge refuses the application, the applicant has a right to ask for his application to be determined again by the full Court of Appeal. The period during which a convicted person is held in custody pending appeal shall be counted as part of his sentence. However, both the single judge and the Court of Appeal have the power to direct that such period or any part thereof may not be counted towards the convicted person's sentence. This has the penalizing effect of increasing his sentence.

55. There are two safeguards against the exercise of this power of the court. First, if a single judge or the Court of Appeal should order loss of time, the judge or the court has a duty to state the reasons for doing so. Secondly, this power cannot be exercised where leave to appeal has been granted either by a single judge or the Court of Appeal or a certificate has been given by the trial judge or the case has been referred to the Court of Appeal by the Chief Executive. The object in having this restriction is to ensure that only reasonably arguable cases should go to the Court of Appeal. In all these situations, either the case is considered reasonably arguable or there is some other reason for referring the case to the Court of Appeal, the Chief Executive having considered the matter and taken the view that the case should be considered by the Court of Appeal (see s. 83P). It is considered that it would not be appropriate that convicted persons in these situations should suffer any loss of time.

56. The purpose of having the power to order loss of time is to deter unmeritorious applications because they would otherwise engage judicial time which may well be better spent on other meritorious cases. The result of wasting judicial time is that meritorious cases would have to be deferred or delayed, thus causing injustice to the parties in those cases, particularly where such parties are held in custody pending appeal.

Leave application before single judge

57. It appears that the procedure for entertaining applications for leave to appeal has changed over the years. The present practice was started in July 2000, after a trial period since 1999.

(1) Applications for leave to appeal against conviction or against sentence involving less than 5 years imprisonment which are lodged by applicants who have been refused legal aid or are otherwise not legally represented are heard by a single judge. The reasons behind this practice are: (a) refusal by the Legal Aid Department or a private lawyer to take up the case would be some indication that the applications are without merit; and (b) cases where sentences longer than 5 years were imposed deserve the consideration of the full Court of Appeal.

(2) If the single judge refuses leave, the applicants are reminded of their right to renew their applications to the full Court of Appeal and of the risk of any loss of time which may be imposed by the full court.

(3) If the single judge grants leave or if the applicant renews his application to the Court of Appeal, the appeal or renewed application would be placed before the full Court of Appeal.

(4) Applications where the applicants are not legally represented and are serving sentences of more than 5 years are placed before a single judge for mention to ascertain whether they need the services of a lawyer or whether there are matters which have to be attended to. These cases are then fixed before the full Court of Appeal for hearing.

(5) All other applications for leave to appeal against conviction or sentence are placed before the full Court of Appeal for hearing.

(6) After hearing oral submissions in an application or renewed application for leave, the Court of Appeal will deal with it in either one of 3 ways: (a) dismisses the application; or (b) grants leave, treats the hearing of the application as the hearing of the appeal and dismisses the appeal; or (c) grants leave, treats the hearing of application as the hearing of the appeal and allows the appeal. It is only when the Court of Appeal deals with the application in the first way that it would consider exercising its discretion under s.83W of the Criminal Procedure Ordinance.

58. Both counsel for the appellant and for the prosecution do not seek to alter this practice. Ms Eu, however, submits that the single judge procedure is one of the safeguards for the right of appeal and that where a convicted person does not have the benefit of an assessment of his case by a single judge, the Court of Appeal should take this into consideration when exercising its power to order loss of time under s.83W.

59. Section 83Y only permits a single judge to exercise the power to grant leave instead of the full Court of Appeal. It does not require that an application for leave to appeal must first be heard by a single judge. Such a procedure serves two useful purposes: (1) it is aimed at relieving the full Court of Appeal of some of its workload; and (2) it also serves as a screening process for unmeritorious applications.

60. I do not think the single judge procedure is intended to serve as a safeguard for the right of appeal of convicted persons or as a trial run for their applications. The argument that they should have the benefit of the opinion of the single judge and an extra warning from him before proceeding further with their appeals is inconsistent with the presence of a power in a single judge to make orders for loss of time. If counsel's argument be right, a single judge should never make such an order or would never have the opportunity of doing so. What then is the purpose of conferring such a power on a single judge?

61. In my view, the single judge procedure is relevant to the making of an order for loss of time only to this extent. Where an application for leave has not gone through this procedure, it does not necessarily mean that no order for loss of time could or should be made by the Court of Appeal if the application is clearly without any merit. Where the application has been refused by a single judge, there is a much stronger case for the making of an order for loss of time if the applicant insists on renewing his application before the full Court of Appeal.

Proceeding with application pursuant to legal advice

62. Ms Eu submits that if an applicant acts under legal advice and proceeds with his application which subsequently fails, the court should not direct any loss of time. It is not his fault to pursue a hopeless application. It may not even be the fault of his counsel if the court should take a different view of the matter. He may not fully appreciate the risk he is running in pursuing his application. Any punishment should only be tied to his knowledge.

63. As I said, the purpose of having a power to order loss of time is to deter unmeritorious applications so that meritorious applications can be dealt with more expeditiously. The mere fact that an applicant has acted under legal advice in pursuing his application should not prevent the court from making an order for loss of time if the application is clearly hopeless. However, such fact is an important factor to be taken into account when the court is considering whether to order loss of time and if so, how much loss of time should be ordered. After all, counsel should not and would not normally put forward any ground or submission which is not at least reasonably arguable and his client should not normally be penalised for relying on his advice. Where an application is pursued on legal advice, this would usually be an indication that the application is not totally without merits. See for example Tsang Ling Yue v. R., unreported, Criminal Appeal No. 192 of 1982, 14 July 1982, where Sir Alan Huggins VP considered it unfair in such circumstances to order loss of time against the lay client. See also Wong Kam Leung v. R., unreported, Criminal Appeal No. 238 of 1982, 13 July 1982.

64. The same problem faces the judges in England where there are similar provisions for the direction of loss of time. There are two practice directions for the guidance of judges and practitioners. In Practice Direction - Applications for leave to appeal (1970) 54 Cr. App. R. 280, Lord Parker LCJ stated as follows:

"Where, therefore, an application which is unarguable is made, notwithstanding that advice on appeal is available, the single judge has no reason to refrain from directing that time shall be lost, if he thinks it right so to exercise his discretion in all the circumstances of the case.

Where the grounds submitted in support of the application are settled, and not merely settled but also signed by counsel, it will be plain to the single judge that there were reasons for making the application even if despite those grounds the single judge decides that the application is one that clearly ought to be dismissed. As the Court has pointed out already ((1966) Cr. App. R. 290), counsel should not draft grounds of appeal unless they are prepared to support them by argument before the Court."

65. See R. v. Howitt (1975) 61 Cr. App. R. 327 where the English Court of Appeal held that a single judge may direct loss of time, even though counsel has advised on an appeal and has settled the grounds. Indeed, in Practice Direction (Crime: Sentence: Loss of Time) [1980] 1 WLR 270, Lord Widgery CJ saw fit to give judges and members of the legal profession the following reminder:

"In order to accelerate the hearing of those appeals in which there is some merit, single judges will, from April 15, 1980, give special consideration to the giving of a direction for loss of time, whenever an application for leave to appeal is refused. It may be expected that such a direction will normally be made unless the grounds are not only settled and signed by counsel, but also supported by the written opinion of counsel. Advice on appeal is, of course, often available to prisoners under the legal aid scheme. Counsel should not settle grounds, or support them with written advice, unless he considers that the proposed appeal is properly arguable. It would, therefore, clearly not be appropriate to penalize the appellant in such a case, even if the single judge considered that the appeal was quite hopeless."

66. These statements are made in the context of the procedures and powers in the English Court of Appeal. There are of course differences in practice in that jurisdiction which include: (1) almost all applications for leave go through the single judge procedure; (2) most of the applications are dealt with on paper without an oral hearing; (3) the single judge is provided with much more materials including counsel's advice; (4) the warning on the risk of the court ordering loss of time is much clearer and more specific; and (5) the Code of Conduct of the English Bar contains express provisions to the effect that counsel has a duty to advance only grounds which are arguable.

67. However, the main reason for a direction for loss of time is the same in the two jurisdictions. I see no reason why the same consideration as set out in the two practice directions should not apply equally in Hong Kong. Hence, in Li Mau-lam v. R. [1981] HKLR 600, Cons JA said at 602G :

"... a single judge is entitled to direct loss of time even though the application to him is made on the advice of counsel."

68. Silke JA in R. v. Law Man [1983] 1 HKC 190 adopted the same attitude and said at 191 F-G:

"If this court considers that an application has no merit, a direction for loss of time will normally be given, whether the applicant is represented or not. This will apply to applications for leave to appeal against conviction, or against sentence, or both."

69. The position therefore is this. While the fact that an applicant has acted under legal advice in pursuing his application should and would be given careful consideration, this is not necessarily a bar to the exercise of the court's discretion. It would be wrong in principle to say that the court should not as a matter of course consider ordering loss of time in such a case. For the court would then be delegating its discretion and subjecting it to the decision of counsel. This cannot be right. In appropriate cases where it is plain that the application is totally unmeritorious, it is the duty of the court to consider directing loss of time even though the application is made pursuant to legal advice. How much weight should be given to this fact is a matter for the court having regard to all the circumstances of the case.

Opportunity to be heard before order

70. Counsel finally submits that where the court dismisses an application for leave and contemplates making an order under s.83W, it should provide an opportunity to the applicant or his counsel to address the court on at least two matters: (1) whether the court should make an order for loss of time; and (2) even if the court is minded to do so, how much time should be lost. It would be a breach of the rules of natural justice to deny him of such an opportunity.

71. In my view, the matter must be looked at in the light of the whole appellate procedure. The starting point must be the purpose of having the power to order loss of time - to deter unmeritorious applications so that meritorious cases can be dealt with without delay. Judicial time should not be unnecessarily wasted. Hence, the main criterion in deciding whether to order loss of time is the total lack of merit in the application. There are, of course, other relevant factors to be considered, including the fact that he is acting under legal advice, the conduct of the applicant in presenting his case to the court, the seriousness of the matter and the importance of the appeal to the applicant. Each case has to depend on its own facts. The circumstances of each case can so vary that it is difficult to lay down any general guideline as to when the court should make an order for loss of time and if so, how much loss of time should be ordered.

72. An applicant in presenting his case to the court, either by himself or through his lawyer, would no doubt draw the court's attention not only to the merits of his case, but also all the relevant materials. He should be well aware of the risk of the court ordering loss of time and there is no reason why he or his counsel could not have made any submission, either in writing or orally during the course of the appeal, with regard to the propriety of making such an order and the amount of loss of time to be ordered in the event his application being dismissed. In Monnell and Morris v United Kingdom, 10 E.H.R.R. 205, in deciding whether the English practice of dealing with applications for leave to appeal (including the question of loss of time) on paper without a hearing contravened art. 6 of the Human Rights Convention, the European Court of Human Rights took the view that the whole appellate procedure had to be considered, including the nature of the leave procedure, its significance in the context of the criminal proceedings as a whole, the scope of the powers of the court, the manner in which the accused's interest was actually presented and protected. It could not be said that they were not afforded an opportunity to make submissions on the question of loss of time since they could have done so in their written submissions. The English provisions were held to be not contrary to art. 6 of the Convention.

73. The Court of Appeal which has read all the relevant materials and heard all the submissions is in the best position to decide whether the application is one which is totally hopeless and whether it is an appropriate case to order loss of time. In considering the amount of time to be discounted, the court should take into account the lack of merit in the application, the length of the sentence, the maximum period to be discounted - the time from the lodging of the application to the hearing of the application, and any peculiar or extraneous circumstances. All these would be readily known to the court either before or during the hearing. If there is any matter which the court ought to know before making an order for loss of time, this will usually be revealed during the course of the hearing. It is seldom that at the end of the hearing when the court dismisses the application, there would be matters which would affect the court's discretion and which the court would not be aware of. It is where the court feels that it may not have the full picture to enable it to exercise its discretion that it will call for assistance from the applicant.

74. As to whether, and if so when, it should do so, it is best that these questions be left to the court to decide in the light of all the circumstances of each case including the amount of information and materials available to the court. The procedure should be left flexible. One must always bear in mind the possibility of abuse if an opportunity is provided as a matter of course to all applicants to make submissions to the court on this issue. An unscrupulous applicant may rehearse the grounds of appeal all over again, thus unnecessarily prolonging the hearing and defeating the purpose of saving time.

75. The Court of Appeal in the present case saw fit to announce that in future it would not be necessary to repeat a warning in court of the risk of the court making an order for loss of time. I would agree with that suggestion. Convicted persons have been given sufficient warning of the risk of making unmeritorious applications. As the Court of Appeal pointed out, there is a warning in both Chinese and English in Note 3 of the statutory form, Form XI, which says :

"The Court of Appeal has power under section 83W of the Criminal Procedure Ordinance to direct that the time during which you are in custody pending the determination of your appeal shall not be reckoned as part of the term of any sentence to which you are for the time being subject."

76. In Note 1 of the same form, the power of the Court of Appeal is clearly stated:

"On an appeal against sentence the Court of Appeal has power under section 83I of the Criminal Procedure Ordinance to either increase or reduce the sentence."

77. In Form XIII, which is used for the renewal of application to the Court of Appeal after a single judge has refused leave, it is also stated:

"A renewal to the Court after refusal by the Judge may well result in a direction for the loss of time, if the Court comes to the conclusion that there was no justification for the renewal. If the Judge has already directed that you lose time, the Court may direct that you lose more time."

78. Where an application for leave is placed initially before a single judge, if he does not see fit to order any loss of time, he will no doubt take the opportunity to give yet another warning to the unsuccessful applicant that if the applicant chooses to renew his application before the full Court of Appeal, there is a high risk that the court will order loss of time.

79. While there is always room for improving the contents of the warnings contained in statutory forms used by those convicted persons who wish to lodge an application for leave to appeal against either conviction or sentence or both, I should think that these warnings are sufficient to bring home a firm message to them that they stand to lose in making totally unmeritorious applications.

Substantial and grave injustice

80. The appellant in the present case did not go through the single judge procedure. He proceeded with his application for leave to appeal against the conviction on the 1st and 2nd charges upon legal advice. After his application was dismissed by the Court of Appeal, the court ordered a loss of time without hearing further submissions from his counsel. If this was an entirely hopeless and unarguable case, I would not have considered it appropriate to interfere with the exercise of the court's discretion. But is this such a case?

81. In ordering loss of time, the Court of Appeal, in compliance with the requirement of s.83W(2), gave its reasons for making such order:

"... the present appeal is totally unsubstantiated. The application is simply abusing the court's resources, and wasting public fund."

82. With respect, I do not think this is a correct view to take in respect of this case. First, the Court of Appeal called upon counsel for the prosecution to address the court on the arguments put forward by the appellant. Secondly, the court had to reserve its decision. Thirdly, the Appeal Committee saw fit to certify a point of law of great and general importance with regard to the admissibility of the confession statements. Finally, in this appeal before this Court, substantial arguments were put forward by both counsel for the appellant and for the prosecution. Although the appellant is unsuccessful in his appeal against conviction, it cannot be said that his appeal is totally unarguable. That being the case, it was a wrong exercise of discretion to direct a loss of time. The appellant has indeed suffered substantial and grave injustice as a result of the order for loss of time. That order must be set aside.

Conclusion on sentence appeal

83. For the reasons given in the preceding paragraph, I would allow the appeal against sentence and set aside the order of the Court of Appeal made pursuant to s.83W of the Criminal Procedure Ordinance.

Mr Justice Litton NPJ:

84. I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Mortimer NPJ:

85. I agree with the judgment of Mr Justice Chan PJ.

Lord Cooke of Thorndon NPJ:

86. I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Bokhary PJ:

87. The Court unanimously dismisses the appeal against conviction but allows the appeal against sentence and sets aside the order for loss of time.