HKSAR v. YIP KAI FOON

CACC138/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 138 OF 1997

(ON APPEAL FROM HCCC 270 OF 1996)

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R U L I N G

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Power, V.-P. (giving the ruling of the Court):

1. The appeal of the applicant against conviction having been dismissed, he has, appearing before us today in person, sought to raise two matters. Firstly, he asks us to certify that a point of law of great and general importance is involved in his appeal so that he can, with our certification, approach the Court of Final Appeal asking them for leave to pursue his appeal. Secondly, he seeks leave to raise a fresh ground of appeal to this court out of time. This ground involves a suggestion of gross incompetance on the part of his counsel at trial and also necessarily, as the matter was not pursued on appeal, of incompetance on the part of his counsel in the appeal.

2. In his application for a certificate he has not formulated any point of great and general importance and we, therefore, have no option to refuse to certify. This does not preclude him, however, as provided by s.32(2) of the Court of Final Appeal Ordinance, from approaching the Court of Appeal itself as that section states that where the Court of Appeal declines to certify, the Court of Final Appeal may so certify and may grant leave to appeal.

3. In the second matter he raised he asks to be allowed to pursue a fresh ground of appeal involving incompetance of counsel. As we have already indicated, in the course of argument, we could only entertain such an application if it was formally made in writing supported by an affidavit. We have heard from Mr. Cross, S.C., with him Mr. Chapman and Ms. Chan, for the HKSAR, who submits that even if a formal application properly supported by an affidavit were made, the application would have to be refused as this court is functus officio. We will deal with that contention if it becomes necessary should it arise after a formal application has been made. Mr. Cross also fairly and properly indicated that it might be open to the applicant to approach the Court of Final Appeal direct with an application for leave based upon a submission that a substantial and grave injustice had been done to him.

4. Considerable difficulties for the applicant arise out of the matters which he seeks to argue before us today and we have told him more than once that he should obtain professional advice. We tell him that again.

5. We refuse to certify as no issue of law has been formulated. We refuse also to deal with an oral application to raise a fresh ground of appeal out of time. It is for the applicant now to consider his position.