THE QUEEN v. WONG TAK SING

Headnote

Court of Appeal - jurisdiction - sentence - conviction of murder reduced to manslaughter - appellant sentenced by Court of Appeal - whether that sentence appealable to Court of Appeal.

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J U D G M E N T

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Hon. Yang, C.J.:

1. On 11th October 1988 the Appellant was convicted of murder after trial.

2. On 3rd November 1989 another Division of the Court of Appeal allowed his appeal against conviction of murder and substituted therefor a verdict of manslaughter.

3. After considering the facts, which we do not think necessary to set out having regard to the nature of this hearing, the Court of Appeal sentenced the Appellant to imprisonment for 18 years for the manslaughter.

4. He now seeks leave to appeal against this sentence, though at the hearing his counsel intimated to us that he was not seeking a "fresh appeal", only a "further application to this Court to reconsider the sentence" in the nature of a review. Having heard counsel, it became clear that what he was really asking was for the case to be relisted before us for hearing as to sentence.

5. The issue which calls for determination is therefore whether or not this Court has jurisdiction to relist for hearing.

6. Counsel for the Appellant submitted that we have jurisdiction. He relied on two grounds.

7. First, it was argued that Part IV of the Criminal Procedure Ordinance, Cap. 221, particularly Sec. 83I(3)(b) thereof, gives us jurisdiction. With respect to counsel, we are quite unable to find anything in that subsection, or indeed in Part IV, which gives us the jurisdiction contended for. Counsel then referred us to Sec. 13(3)(a) of the Supreme Court Ordinance, Cap. 4, which provides that the criminal jurisdiction of the Court of Appeal shall consist of "any other jurisdiction conferred on it by law". We are unable to find any law which confers such jurisdiction on us. Furthermore, our reading of Sec. 13(3), particularly subsection 3(a) is that quite clearly the Court of Appeal may only hear appeals from the High Court or District Court.

8. There is in our judgment no statutory provision which gives us the jurisdiction counsel says we have.

9. We find nothing in this first ground.

10. The second ground, an invitation to relist, was based on two lines of English authority. The first is exemplified by R v Cross (1973) QB 937, where the English Court of Appeal (Criminal Division) recognised a court's power to modify an order before it was perfected, and identified the time when that event occurred in the context of the English Criminal Appeal Rules. The relevant Hong Kong Criminal Appeal Rule is r. 62(1) which provides:-

"On the final determination of any appeal the Registrar shall give to the appellant, if he is in custody and who has not been present at such final determination, and to the Commissioner of Correctional Services' notice ... as may be appropriate."

11. It follows that in the ordinary course when the appellant is present, his hearing of this court's determination constitutes finality. There will accordingly be little scope in Hong Kong for the application of this principle and since the applicant was present on 9th November none in this case.

12. The second line of authority is exemplified by R v Grantham (1969) 2QB 574 and R v Daniel (1976) 64 Cr. App. Rep. 50, where the court recognised a power "to reconsider a matter if it has never properly been determined owing to some procedural error or mistake" per Widgery L.J. in Grantham p. 579, and which has resulted in "a likelihood that injustice has been done" per Lawton L.J. in aniel p. 68. Both ingredients are necessary. Mere assertion of injustice, without grave procedural error, which is the most that Mr. Wong could advance, is insufficient. There was no procedural error here at all, so that it is apparent that neither line of authority assists the applicant.

13. Finally Mr. Wong sought to rely upon R v Andrew Shacklady (1987) 9 Cr. App. Rep. (S) 258. Properly understood this does not assist as it is no authority for the proposition that in that case the English court permitted two substantive hearings of an appeal against sentence. On the first occasion the full court granted leave to appeal; on the second it heard and ruled upon that appeal.

14. For these reasons we hold that we have no appellate jurisdiction, decline to relist and reject this application.