HKSAR v. TANG KWOK KEI

CACC 508/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 508 OF 2000

(ON APPEAL FROM HCCC NO. 161 of 2000)

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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):

1.  This matter is listed before us as an application to treat the abandonment, almost seven years ago, of an application for leave to appeal against conviction as a nullity.  This hearing has provided us with the opportunity to state that when circumstances of the kind which have arisen in this case are in existence, the court is functus officio.  On this account, it is not appropriate for such a matter even to be listed for hearing.

2.  Putting the lengthy history, so far as it is relevant, as shortly as possible, the applicant was convicted on 27 November 2000 after a trial before Deputy Judge E Toh on counts of manufacturing and trafficking in heroin as well as the possession of arms and ammunition without a licence.  He received an overall sentence of 25 years’ imprisonment.  The applicant applied for leave to appeal against conviction on 20 December 2000 but, on 1 August 2001, the applicant informed the Court of Appeal at the start of the hearing in open court that he wished to abandon the application.  The court then dismissed the application he had made.  Well over two years later, the applicant applied out of time for leave to appeal against his sentence and, on 22 September 2004, this was also dismissed.

3.  Finally, we come to an affirmation made by the applicant earlier this month, on 2 July 2008, in which he sought to revive his earlier application for leave to appeal against conviction by inviting the court to allow him “to withdraw [his] original decision of abandoning [his appeal]”.

4.  As we have already indicated, there can be no question of this request being granted under any circumstances.  The court before which this application was listed on 1 August 2001 was fully prepared to proceed with it before it dismissed the application.  In this regard, the decision by an applicant not to proceed when appearing before the Court of Appeal is to be distinguished from a written abandonment under the Criminal Appeal Rules, Cap. 221A.  Rule 39 provides for the abandonment of an appeal in these terms:

“An appellant may, at any time before the hearing thereof, abandon his appeal by giving notice of abandonment thereof to the Registrar in Form VII, and upon such notice being received by the Registrar the appeal shall be deemed to have been dismissed by the Court of Appeal.”

5.  By contrast to a formal dismissal under Rule 39, when an applicant informs the Court of Appeal of his desire not to proceed at the hearing of his application for leave to appeal, consideration has been given to the merits of the appeal by the court.  No such consideration is involved under the Rule 39 procedure.  The court may or may not accede to the request when it is made to the court and it is difficult to imagine that any court, faced with what it considers at first sight to be a meritorious application, would allow an applicant to abandon his appeal merely because he had stated that he did not wish to proceed with it.  In such circumstances, there will have been some assessment by the court of the merits and, by dismissing the application, the court has discharged its function.  Having done so, it has no authority to go behind its own decision.

6.  In this case we are functus.  It follows that the dismissal of the application on 1 August 2001 will stand.

7.  For the avoidance of doubt, if in future an application is made in similar circumstances (such as occurred also in HKSAR v Hill Wong, CACC 329/2006), the matter should not be listed for hearing before this court.  Instead, the applicant should be informed in writing that the court, having made its decision to dismiss the appeal when the case was last before the court, has no further jurisdiction over the matter.