TANG SIU MAN v. HKSAR

IN THE COURT OF FINAL APPEAL

HONG KONG

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Application for Leave to Appeal
FAMC No. 3 of 1997

Between:

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DETERMINATION

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Chief Justice Li:

1. This is the determination of the Appeal Committee upon an application for leave to appeal brought under section 32 of the Hong Kong Court of Final Appeal Ordinance ("the Ordinance").

The background

2. On 23 May 1996, the Applicant was convicted after trial before Saied J and a jury of one count of manufacturing a dangerous drug and one count of trafficking in a dangerous drug. On 29 May 1996, he was sentenced to 28 years and 24 years' imprisonment for the respective counts to be served concurrently.

3. He applies to the Court of Appeal for leave to appeal. On 8 July 1996, the Court of Appeal (Power V-P, Mayo JA and Wong J) refused him leave to appeal against conviction. They reduced the sentence on the manufacturing count to 25 years.

4. Upon the Applicant's notice of motion filed on 5 August 1997, the Court of Appeal (Power V-P, Mortimer V-P and Wong J) on 14 August 1997 granted an order, certifying that a point of law of great and general importance is involved in the decision.

5. By notice of motion filed on 23 August 1997, the Applicant applied to this Court for leave to appeal and the grounds in support were set out. At the same time, the Applicant applied to this Court by summons seeking a determination of (i) what is the time limit for an application for leave to appeal to the Court and (ii) if, on such determination, his application is out of time, an extension of time for his application.

The certified point of law

6. The point of law certified by the Court of Appeal was not set out in its order made on 14 August 1997. We find it set out in the grounds in the Applicant's notice of motion filed on 23 August 1997 for leave to appeal to this Court. It is in these terms:

"Whether the trial judge having decided to direct to direct the jury to treat the Applicant as a man of good character in spite of a previous conviction, is then obliged to give a direction on both credibility and propensity?"

7. At the trial, the Applicant gave evidence. The direction given by the judge was in these terms:

"While on this issue of credibility, you will recall that the defendant admitted that he had one previous conviction for Assault occasioning actual bodily harm for which he was placed on probation for a year when he was aged twenty. That conviction appears to have been for a not serious assault and it certainly did not involve dishonesty, it was straight forward simple assault. I expect that you would like to put that previous conviction aside and treat him, effectively, as a person of good character. Of course, good character cannot amount to a defence, but as with any man of good character, it supports his credibility."

The time limit

8. Part III of the Ordinance deals with appeals to this Court in criminal matters. It is convenient to set out sections 31, 32 and 33 of the Ordinance as amended by the Hong Kong Court of Final Appeal (Amendment) Ordinance No 120 of 1997 which substituted "Court of First Instance" in place of "High Court" in these provisions.

Section 31 Criminal appeals

An appeal shall, at the discretion of the Court, lie to the Court in any criminal cause or matter, at the instance of any party to the proceedings, from -

(a) any final decision of the Court of Appeal;

(b) any final decision of the Court of First Instance (not being a verdict or finding of a jury) from which no appeal lies to the Court of Appeal.

Section 32 Leave to appeal

(1) No appeal shall be admitted unless leave to appeal has been granted by the Court.

(2) Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done.

(3) Where the Court of Appeal or the Court of First Instance declines to certify as mentioned in subsection (2), the Court may so certify and grant leave to appeal.

(4) The Court may when granting leave under subsection (1) impose a timetable on any party for the prosecution of the appeal and may either on the application of a party or of its own motion vary that timetable.

Section 33 Application for leave to appeal

(1) An application to the Court for leave to appeal shall be made within 28 days from the date of the decision of the Court of Appeal or the Court of First Instance, as the case may be.

(2) The Court may, upon application made at any time by any party to the appeal, extend the time within which an application may be made to the Court under subsection (1).

(3) An appeal to the Court shall be treated as pending until any application for leave to appeal is disposed of and, if leave to appeal is granted, until the appeal is disposed of.

9. Section 33(1) provides that an application to the Court for leave to appeal shall be made within 28 days from the decision of the lower Court. Does the decision refer to (i) the decision of the lower Court appealed from, or (ii) the decision of the Court certifying (or declining to certify) a point of law of great and general importance?

10. In our judgment, on the proper construction of section 33 in its context, "decision" therein means the former; that is, the decision of the lower Court appealed from. The "final decision" in sections 31(a) and (b) of course refer to the decision of the lower Court appealed from. Decision is used in this sense in section 32(2) when it provided for the Court below certifying that a point of law of great and general importance is involved in the decision. Decision is also used in this sense in section 35 which deals with the detention of the defendant where immediately after a decision of the Court of Appeal or the Court of First Instance as the case may be, the prosecutor is granted or gives notice that he intends to apply for leave to appeal. Given the context of these sections in Part III in which "decision" refer to the decision of the Court below appealed from, the word "decision" in section 33, in our judgment, has the same meaning. The expression has a consistent meaning in these sections.

11. In HKSAR v Mui Po Chu (unreported) FAMC No 2 of 1997 (11 September 1997), the Appeal Committee, in its determination upon an application for leave to appeal, expressed the view (albeit not a concluded one in the absence of full argument) that the following argument appears to be sound: That if the basis for the application is that "substantial and grave injustice has been done", then no question of certification by the lower Court arises and the application for leave to appeal must be addressed to the Court itself. If that is correct, then "decision" in section 33(1) would clearly refer to the decision of the lower Court where the "substantial and grave injustice" limb is relied on. It would be odd that where the "point of law" limb is relied on, the "decision" in the same section encompasses quite a different kind of decision, namely, the decision to certify or not. This point supports the conclusion we have reached that decision in section 33 means the decision of the lower Court appeal from, whichever limb is relied on, and not the decision to certify or not.

12. We also note that, if the contention which we have ruled against were correct, that "decision" in section 33(1) means the decision to certify (or not), then the time for applying for leave to appeal to the Court would be open ended. The 28 days in section 33(1) would then only be triggered after the decision to certify (or not). But there is no time limit within which the Applicant has to apply to the lower Court for certification. This would have been totally unsatisfactory.

13. We therefore conclude that the time limit for an application for leave to appeal under section 33(1) is 28 days from the date of the decision of the lower Court appealed from.

Observations on the time limit

14. In our view, this time limit should not normally pose any significant difficulties. The lower Court gives its decision on an appeal. The arguments on the point of law would already have been thoroughly canvassed at the hearing. The Applicant should be able to decide upon legal advice reasonably promptly whether to apply to the lower Court for certification on the point of law involved; perhaps this can sometimes be done at the same time as the decision is given. Where he applies, the lower Court should have the same composition where possible. It is incumbent upon the lower Court to hear and deal with his application promptly, bearing in mind the 28 days time limit. This can usually be done as they have already heard the substantive arguments. Where the lower Court certifies, the Applicant can then apply to the Court for leave. Where the lower Court declines to certify, the Applicant can then apply to the Court for a certificate and for leave under section 32(3).

15. Where the Applicant relies on the "substantial and grave injustice" limb, on the basis of our view in HKSAR v Mui Po Chu, the Applicant has to apply to the Court within 28 days of the decision of the lower Court appealed from.

The 28 days time limit in section 33(1) is there to be observed. But in a case where the time limit has not been observed, the Court has the discretion to extend time under section 33(2). The Court would of course consider all the circumstance in considering the exercise of this discretion.

Extension of time

16. The Applicant is out of time. Especially as the Ordinance is new, we have no hesitation in granting the extension of time sought. This is not opposed by the respondent.

Order certifying point of law

17. As we have pointed out, the Court of Appeal order certifying that a point of law of great and general importance is involved in the decision did not set out the point of law in question. This is unsatisfactory. The order of the lower Court should set out the point of law in the order itself.

Leave to appeal

18. The question whether the Court has the discretion to refuse leave, where the lower Court has certified a point of law, does not arise in this case, and no arguments have been addressed on this point. We would only observe without expressing any concluded view that it appears that the Court has such discretion and that it could consider exercising it in circumstances such as that on analysis the certified point of law is not is substance a point of law or that the answer to it is plain and obvious.

Orders

19. Accordingly, we grant the requisite order extending time for the application and we grant leave to appeal. On the appeal, full arguments would no doubt be addressed both in the written Cased and at the hearing on the certified point of law, as well as the question whether if the trial judge erred on the point, such error might have led to a miscarriage of justice.