HKSAR v. HUNG WAI YIP

CAC C 51/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 51 OF 2011

(ON APPEAL FROM HCCC NO. 20 OF 2010)

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BETWEEN

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REASONS FOR ORDER

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Hon Stock VP (giving the Reasons for Order of the Court):

1.  On 3 October 2013 we dismissed the application of the first applicant for leave to appeal conviction; and handed down our reasons on 8 November 2013. We determined that the grounds of appeal were entirely without merit, particularly that the allegations of incompetence against counsel were bereft of any justification whatsoever. We directed the presentation of written submissions as to why an order should not be made for loss of time pursuant to the provisions of s 83 W of the Criminal Procedure Ordinance, Cap. 221.

2.  We received written submissions in accordance with those directions and heard oral submissions.  In the result, we directed that six weeks of the period during which the applicant has been in custody pending the determination of his appeal shall not be reckoned as part of term of the sentence to which he is for the time being subject.  These are our reasons for that order.

3.  Counsel for the applicant has pointed to the very long term of imprisonment to which the applicant is subject (23 years) and to the fact that the advice in this case was given before the Practice Note issued on 9 October 2013, by which practitioners were reminded of the power exercisable under section 83W, with particular reference in the Note to unmeritorious allegations of incompetence.

4.  The Practice Note was but a reminder of an existing power.  Furthermore, although the lengthy term of imprisonment is a factor we take into account, the grounds of appeal in this case were particularly unmeritorious and the allegations of incompetence put counsel and solicitors against whom allegations were made to many hours of inconvenience and stress, all for no sound reason whatsoever.  This is precisely the type of unmeritorious appeal for which the statutory provision was enacted.

5.  We also heard submissions as to costs.  The applicant was not legally aided upon appeal and we were minded to order him to pay the costs of the appeal.  The assertion was that his own costs of the appeal were funded by his sister.  We directed that evidence be adduced in support of this assertion and of her means.  She testified before us and we were left in doubt as to whether the applicant or his family were in a position to meet the respondent’s costs of the appeal.  There was no evidence or submission from the respondent to undermine the assertion of the source for the funding of the appeal and as to present lack of means.  Accordingly, we made no order as to the costs of the appeal.