HKSAR v. YEUNG MOK YEH

CACC 483/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 483 OF 2004

(ON APPEAL FROM HCMP NO. 2209 OF 2004 AND HCCC 239 OF 1990)

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and

CACC 57/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 57 OF 2005

(ON APPEAL FROM HCMP NO. 2211 OF 2004 AND HCCC 239 OF 1990)

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BETWEEN

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J U D G M E N T

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Hon Stock JA:

1. On 18 July 2005 we handed down a judgment in these two cases which were applications for leave to appeal against certain fixed terms of imprisonment imposed under section 67C of the Criminal Procedure Ordinance, Cap. 221.  We granted leave but dismissed the appeals.

2. Applications have now been filed by the applicants who are represented by counsel who in turn is instructed by the Director of Legal Aid.  Each application is dated 11 August 2005.  The applications are entitled:

“Application for Certificate to Apply to the Court of Final Appeal”.

3. We should not have to point out that there is no such thing as a certificate to apply to the Court of Final Appeal.

4. The applications seek “an order that the appellant has leave to appeal to the Court of Final Appeal”.

5. We should not have to point out that this Court has no power in criminal cases to grant leave to appeal to the Court of Final Appeal.  This court merely has power under section 32 of the Court of Final Appeal Ordinance, Cap. 484 to issue a certificate that a point of law of great and general importance is involved in the decision.

6. The grounds of the application are as follows:

‘This appeal involves a point of law of great and general importance, namely:

“Does section 67(5)(a) of the Criminal Procedure Ordinance, Cap. 221 Laws of Hong Kong, or otherwise, entitle a sentencing judge to make a specific deduction to an Appellant on an account of that appellant’s performance whilst imprisoned from, the term which otherwise would have been appropriate?”’

7. Section 67(5)(a) of the Ordinance does not exist.  We presume, and counsel has confirmed, that he means section 67C(5)(a).

8. A sentencing judge does not deal with appellants.  He deals with defendants.

9. By the words ‘or otherwise’, in the phrase “Does section 67(5)(a) of the Ordinance, or otherwise entitle a judge …”, we presumed that counsel meant: “Does section 67C(5)(a), or any other provision of law, entitle a judge ….”.  But Mr Donald says not.  He says it should be read to mean “any other provision where people have spent a considerable time in prison before sentence.”

10. Applications for a certificate under section 32(2) – assuming that this is what was intended by this application – should be made immediately after judgment is given: see Practice Direction 2.2.  But where a judgment is handed down, as it was in this case, an application for a certificate should be made within 7 days of the handing down of the judgment: see Practice Direction 4.3.  That has not been done.  The application was made 24 days after the handing down of judgment.  There is no explanation in the papers for this delay.  There is no application for an extension of time.  Indeed, there is no indication of any awareness that time has been exceeded.  We note, further, that the time within which an application to the Court of Final Appeal for leave is required, by section 33(1) of the Court of Final Appeal Ordinance, to be made is 28 days.  That time has long since gone.  No application under section 33 has been made.  Counsel says he misunderstood the effect of the statutory provisions at the time, though how, had he studied the Practice Directions, he could have done so is difficult to see.  We note that he came to this Court without either a copy of the Court of Final Appeal Ordinance (the Ordinance under which this application is made) or a copy of the Criminal Procedure Ordinance (the Ordinance which houses the provision purportedly the subject of this appeal).  That particular omission, is within our experience, by no means unique in criminal cases in this jurisdiction.

11. We do not see why the Court of Appeal – or any court for that matter – should be expected to shrug off the type of sloppiness with which this application has been approached.  We do not see why we should not expect a disciplined and professional approach.  We do not see why this court, or any other court, should do the homework which counsel are supposedly trained to do, which a modicum of professionalism requires counsel to do, and which counsel are paid to do, paid in this case, as so often in criminal matters, at public expense.  And if it be wondered why concerns of this kind are included in a judgment, it is because a lack of proper discipline and preparation and presentation in criminal cases is not unique to this case.  We will not entertain applications thus presented, and for these reasons alone the applications are dismissed.

12. This is yet another example of a waste of public funds.  It is yet another example, of which this Court has complained on several occasions, where the courts are denuded of any power to do anything about it save to wring its hands in some dismay at the charade that is constituted by the wasted costs provisions of the Costs in Criminal Cases Ordinance, Cap. 492.  Unlike provisions in other jurisdictions, which are meaningful, in Hong Kong the court is restricted to making a wasted costs order where counsel fails to appear or is late without reasonable cause, leading to an adjournment.  This provision is a nonsense, for it is a circumstance which in the combined experience of the members of this bench has never happened and will, on any conceivable view, be a rare occurrence.

13. To present the complete picture of the litany of errors, we have been trying to ascertain what it is in this case about which complaint is made.  In the judgment handed down in July, we made it perfectly clear that under the terms of section 67C of the Criminal Procedure Ordinance, a judge was duty bound to take into account the conduct of a prisoner after he had been first sentenced.  That determination is challenged by nobody.  It can hardly be challenged by the appellants, for that is precisely the finding that the appellants asked this Court to make in their favour.  So the only conceivable point, as the question was drawn, is whether other than under section 67C a sentencing judge should take into account conduct after initial incarceration.  But this case was concerned with section 67C, although it is true that we did make reference to general sentencing principles.  Counsel then told us that his complaint was that it was section 67C that we approached too narrowly; in other words that although he accepts that we in effect said that a judge was entitled under s67C to make a deduction on account of a convicted person’s conduct in prison – in which case, we remark, the question should not have been framed as it was – nonetheless, we should not have said that it was not the judge’s function to substitute himself for the Long Term Prison Sentences Review Board constituted under the Ordinance of that name, Cap. 524; and that had we not taken that approach, the result would or may have been different.  But this was not the question posed.  So we adjourned to allow Mr Donald to redraw the question.  The question redrawn is:

“Does section 67C(5)(a) of the Criminal Procedure Ordinance, Cap. 221 Laws of Hong Kong, entitle the sentencing judge to ‘intrude’ upon the province which the legislature has entrusted to others?”

As put, the question answers itself.

Hon Ma CJHC:

14. I agree, for the reasons given by my Lord Mr Justice Stock JA, that the present applications should be dismissed.  I wish, however, to make the following observations.  The courts are concerned with the ends of justice: particularly the interests of defendants and generally the interests of the public.  Counsel and solicitors are expected to view their work in precisely the same light.  Solicitors are expected to do more than merely refer all matters to counsel.  The proper observance of time limits and practice directions are matters which a competent solicitor is expected to do.  If in performing its functions to those ends, the court finds it necessary at times to express itself in exasperation on the conduct and performance of counsel and solicitors, as in the present case, and to insist on a high degree of professionalism and discipline, then so be it.  This court and other courts will insist upon professionalism and will continue to watch for waste of public funds, and counsel and solicitors should in future expect that work of an unacceptably low standard will be referred to the relevant professional body.

Hon Woo V-P:

15. I agree entirely with what has been said by the Chief Judge and Mr Justice Stock JA. 

Hon Ma CJHC:

16. The applications are accordingly dismissed.