HKSAR v. WU CHI KEUNG

CACC 120/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 120 OF 2000

(ON APPEAL FROM HCCC NO. 243 OF 1999)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Fok JA (giving the Reasons for Judgment of the Court):

The application

1.  This was an application by the applicant for leave to treat the abandonment of his application for leave to appeal against conviction dated 11 July 2001 as a nullity and for leave to appeal against conviction.  That application was first made by way of, and was supported by, an affirmation of the applicant dated 18 July 2011.

2.  The application originally came on for hearing on 16 August 2012 but had to be adjourned to a differently constituted court. It then came on for hearing before this Court on 20 November 2012 but was then adjourned at the applicant’s request in order for him to obtain legal representation.

3.  Since that last hearing, the applicant has made a further affirmation dated 14 December 2012 in support of the application and, at the adjourned hearing before us, he was represented by solicitors and counsel.

4.  At the conclusion of the hearing, having heard submissions on the application to treat the abandonment as a nullity, we dismissed that application and indicated we would hand down our reasons at a later date.  These are those reasons.

The trial

5.  On 8 March 2000 the applicant was convicted, after trial before Deputy Judge McMahon and a jury, of all three counts on the indictment.  The three offences were alleged to have been committed on 26 April 1999 in a hut at Muk Kiu Tau Village in Yuen Long.  Count 1 alleged that the applicant had manufactured a dangerous drug, namely heroin hydrochloride; by counts 2 and 3 the applicant was alleged to have unlawfully trafficked in 875 g of heroin hydrochloride and 1,599 g of cannabis respectively.  The applicant was sentenced on 9 March 2000 to three terms of imprisonment, namely 24 years’, 21 years’ and 9 months’ imprisonment respectively.  All the sentences were ordered to be served concurrently.

The application for leave to appeal against conviction and its abandonment

6.  On 29 March 2000, the applicant filed a Form XI giving notice that he intended to apply for leave to appeal against conviction.  On 19 June 2000, the applicant’s application for legal aid was refused on the merits.  In the months that followed, two different firms of solicitors filed Notices to Act for the applicant.  On 19 February 2001, on the application of counsel, on the instructions of the latter of the two firms of solicitors, Wong JA granted an extension of time to 5 March 2001 to file Perfected Grounds of Appeal.  By a notice dated 5 March 2001, those solicitors informed the court that they no longer had instructions to act on his behalf. On 11 July 2001, the applicant filed a Notice of Abandonment in respect of his application for leave to appeal against conviction, which application was dismissed that day.

The application to treat the abandonment as a nullity

7.  In his affirmation dated 18 July 2011, the applicant affirmed that he had abandoned the application out of concerns that he was liable to have his sentence increased if he persisted in his application for leave to appeal against conviction.  In particular, the applicant asserted that at a hearing on 13 July 2000 he had been given a warning to that effect by a single Judge of Appeal.  At that stage, he said that he had not received any legal advice.  It is apparent from the court papers that the hearing on that date was a ‘mention’ hearing only, presided over by Chan CJHC (as he then was).  In addition, the applicant asserted that he had not understood that the abandonment of the application for leave to appeal operated to prevent him from renewing the application at a future date when “reasonable grounds of appeal” were identified.  Therefore, he affirmed, the Notice of Abandonment was filed on 11 July 2001.

8.  In his latest affirmation dated 14 December 2012, the applicant affirmed that on 3 July 2001 he appeared before the Court of Appeal in person for mention.  He says that a Justice of Appeal, whose name he cannot recall, warned him that the fact he was still seeking a legal representative was not an excuse for delaying the case and that if he “continued to use such reason for adjournment, he would disregard the sentences I had already served”.  The applicant then says that the matter was adjourned to late November 2001 for him to seek legal representation.  He now says he believes this warning was given in 2001 rather than July 2000 as stated in his affirmation dated 18 July 2011.

9.  The applicant then goes on to depose in his latest affirmation:

“12. Throughout the period from Conviction to July 2001, I had not had any legal advice on the effect of abandonment of appeal. The effect and consequence of giving Notice of Abandonment was not explained to me.

13. Therefore, given this warning and concerned my “time served” could be at risk, without obtaining any further legal advice, I wrote a letter to the Court of Appeal to “suspend” that particular appeal hearing (in November 2001), using the form available in prison and sent to the court by Correctional Services Department. As far as I can remember, the content of the letter was roughly as follow:

            “Since Legal Aid was not granted to me, my family could not find money to instruct lawyer, I ask the court to ‘suspend’ my appeal.”

14. I thought at the time, and was never advised otherwise that the “Abandonment” was just an act for the particular application, i.e. the hearing in November 2001, but not giving up all my future right of appeal. I though[t] that I could still have a chance to make an application to appeal again when additional reasonable grounds of appeal were raised. I therefore used the word “suspend” in my letter.”

10.  The applicant then refers to certain actions taken by him in the period from August 2001 that he says demonstrate he was not abandoning his appeal.  He concludes by saying he truly believed throughout that the Notice he signed, without legal advice, was only relating to the adjourned hearing in November 2001 and not “the complete Appeal” and hence asks that his abandonment be treated as a nullity.

The submissions on behalf of the applicant

11.  Mr James McGowan, counsel for the applicant,[1] submitted that the applicant believed that by the Notice of Abandonment he was obtaining a suspension pending his obtaining further legal representation and that he did not know the effect or consequences of that which he signed.  Particular reliance was placed on the steps taken by the applicant shortly after the Notice of Abandonment was filed which, it was submitted, supported the contention that he could not have understood that notice to have meant that he could not revive the appeal when he had proper grounds.  It was therefore submitted that this is a case in which the applicant did not intend to abandon the appeal and did not understand the nature or effect of the notice or misunderstood the nature or effect of the appeal itself.  In short, it was submitted that the applicant’s mind did not go with the act of abandonment so that its service was not truly his act.  Hence, this court could and should properly treat the abandonment as a nullity.

The relevant principles

12.  There is no dispute that the only circumstances in which an abandoned appeal may be restored for hearing is, “if, as a matter of law, that abandonment may properly be treated as if it had never occurred, and the only circumstance in which that course is permissible is if that abandonment was in law a nullity” (see the judgment of this court in HKSAR v Lai Siu Cheung [2004] 3HKLRD 1 at §24).  The kernel of the nullity test is that the court is satisfied that the abandonment was not the result of a deliberate and informed decision, in other words that the mind of the applicant did not go with his act of abandonment: ibid. at §25.  Of the circumstances relevant to the consideration of whether or not the abandonment was a nullity, the judgment goes on to state at §28:

“ The person who, properly informed, knows what the document is that he or she is signing and who, properly informed, knows what the effect is of the document he or she is signing and, with that knowledge, deliberately signs the document, will be hard pressed to show that that act is a nullity. Wrong advice given as to the merits of an appeal is not advice that goes to the nature, or to the effect of the signing of, the document.”

13.  The greater the delay between the filing of the notice of abandonment and the application to the court to have the abandonment treated as a nullity, thereby vitiating the dismissal of the application, “... the harder it might be for an applicant to establish that he was not simply having second thoughts about the merits of his appeal”: see the judgment of this court in HKSAR v Mohd Syafiq Bin Mansor, unrep., CACC 188/2010, 22 February 2012 at §11.

14.  Of the irrelevance, at this stage, of a consideration of the merits of the application for leave to appeal against conviction, Ma CJHC (as he then was) said in the judgment of this court in HKSAR v Law Kam Fai [2006] 2 HKLRD 879 at 893 H-J, at §44:

“ The court does not inquire into the merits of the actual application for leave to appeal at all; nor should it until the said test has been satisfied. In other words, the outcome of an application to treat the abandonment as a nullity does not depend on the validity or cogency of the underlying application whose abandonment is sought to be nullified. How good or bad the underlying application for leave to appeal against conviction or sentence may be, this is irrelevant.”

Applicant’s burden not discharged

15.  The burden is squarely on the applicant to persuade the Court by credible evidence of the facts to satisfy the nullity test: HKSAR v Ooi Lim Khoon [2011] 5 HKLRD 100 at §16.

16.  We were not satisfied that the applicant had discharged that burden for the following reasons.

17.  It is clear that the applicant does not have a good recollection of the chronology of events relating to his appeal and its abandonment.  He acknowledges this fact in his latest affirmation.  Thus, he is clearly mistaken as to the date of the mention hearing that he says took place on 3 July 2001.  There was no such hearing.  Instead, after the filing of his Form XI, there were only two hearings, namely a mention hearing before Chan CJHC on 13 July 2000 and a mention hearing before Wong JA on 19 February 2001.

18.  The hearing on 13 July 2000, to which the applicant drew attention in his affirmation dated 18 July 2011, occurred a full year before the applicant filed his Notice of Abandonment of the application for leave to appeal against conviction.  Indeed, Chan CJHC had adjourned the hearing of 13 July 2000 to enable solicitors to attend on behalf of the applicant.  Although Messrs Chong, Leung & Co. filed a Notice to Act on behalf of the applicant on 26 July 2000, after which they were provided with the appeal bundle on 8 August 2000, apart from applying on 5 September 2000 successfully for an extension of time for 21 days to file Perfected Grounds of Appeal, there were no other hearings and they did not file such grounds before they gave notice on 28 September 2000 that they ceased to act for the applicant.

19.  On 13 December 2000, eight days before the date fixed for the hearing of the application for leave to appeal against conviction, Messrs Paul Kwong & Co. filed a Notice to Act on behalf of the applicant.  At their request, by letter of the same date, the hearing fixed for 21 December 2000 was vacated.  As noted earlier, in due course that led to the hearing before Wong JA on 19 February 2001 at which the applicant was represented by counsel, on whose request an extension of time for filing Perfected Grounds of Appeal was granted to 5 March 2001.

20.  On 3 July 2001, in circumstances in which the applicant had failed to file perfected grounds of appeal on or before 5 March 2001, and after Messrs Paul Kwong & Co. had informed the court that they ceased to act for the applicant, the hearing of the application for leave to appeal against conviction was fixed for 17 July 2001.  However, as noted earlier the applicant’s application was dismissed on 11 July 2001 on his filing Form VII, a Notice of Abandonment, in accordance with rule 39 of the Criminal Appeal Rules of the Criminal Procedure Ordinance, Cap. 221.  It is to be noted that the text of the Notice of Abandonment form, which was signed by an interpreter to indicate that its contents were interpreted to the applicant, clearly states of the application for leave to appeal against conviction that:

“... I abandon all further proceedings in regard thereto.”

21.  This would seem to be the document which the applicant now contends was a letter written by him on the form available to him in prison and in which he claims he asked for the court to “suspend” his appeal.  However, he did not mention the existence of any letter written by him to the court accompanying the Notice of Abandonment in his first affirmation in support of the application.  There is no such letter on the court file and we are not satisfied that he wrote any such letter to the court.

22.  Nor are we satisfied that, when he filed his Notice of Abandonment, that the applicant did not understand the nature of the abandonment.  In this context, it is significant to note that the applicant’s latest affirmation indicates that, when he filed his Notice of Abandonment, he had received legal advice on the underlying merits of his application to appeal against conviction from three separate firms of solicitors.  First, Messrs Chong, Leung & Co. advised him that the chance of success was “just a try” so he decided not to retain them.  Secondly, Messrs Paul Kwong & Co advised him there were reasonable merits of appeal against sentence for Counts 2 and 3 but no chance in respect of Count 1 so that there would not be any reduction in the total sentence even if the appeal was allowed, so he decided not to retain them.  Thirdly, a third solicitors’ firm, whose name he cannot recall, advised him in early 2001 his case had no reasonable ground of success and so he decided not to retain that firm for his appeal.

23.  Insofar as the applicant might have been deterred from proceeding with his appeal because of any warning given to him as to “loss of time”, it is clear from the chronology of his appeal that the only hearing at which this might have been given is the hearing on 13 July 2000 (no such warning having been given at the hearing on 19 February 2001, as counsel confirmed after listening to the recording of that hearing).  But that hearing was almost a year before the Notice of Abandonment and was before he had legal advice on the merits of his appeal from the three firms of solicitors in question.

24.  Those circumstances provide the context of his Notice of Abandonment on 11 July 2001 and we do not accept that the applicant was not aware of the nature and effect of the Notice of Abandonment that he signed.  It is a simple form which was translated to him and there is nothing in it that would suggest its execution was not a final disposition of an application for leave to appeal: see, in this context, the observation in HKSAR v Ooi Lim Khoon at §16 that, in most cases, a person can be taken to realise that when he is signing a notice of abandonment, he is doing just that.

25.  A further important factor is that of delay. The period between the Notice of Abandonment and the application to treat it as a nullity was over 10 years.  This delay has affected the position in two respects.  First, it affects the reliability of the applicant’s affirmation evidence: that much he acknowledges himself.  Secondly, it calls into question whether the change of mind is not simply a matter of the applicant having second thoughts about his appeal.  This is all the more so here in the light of the advice he received on the merits of his appeal.

26.  The applicant’s first affirmation did not address the issue of delay other than to say that until May 2007 he was looking unsuccessfully to find “reasonable grounds of appeal”.  In that month, he claims he became aware from the newspapers of the judgment of this court in HKSAR v Lo Wai Ming, which judgment was delivered on 11 May 2007 (CACC 530/2005, reported in [2007] 3 HKLRD 191).  He says his family members obtained legal advice for him which he says was positive, although that fact is now contradicted in his latest affirmation.

27.  The applicant’s latest affirmation seeks to portray the applicant as taking a continuous series of steps towards making an application based on reasonable grounds of appeal.  However, when analysed, it is apparent that the steps are not connected with each other, nor do they demonstrate that the applicant believed his appeal was merely suspended.

28.  The alleged assistance sought and advice received in August 2001 (which is undocumented and therefore of doubtful reliability) merely reconfirms that all the legal advice the applicant received was negative.

29.  The correspondence with the Legal Aid Department in 2004 concerned his dissatisfaction with the performance of his own counsel (and not, as now suggested in the proposed grounds of appeal, counsel for the prosecution).

30.  The correspondence in 2006 relates to the Court of Final Appeal’s decision in HKSAR v Hung Chan Wa (2006) 9 HKCFAR 614 and does not include any suggestion of positive prospects of an appeal by the applicant.

31.  As to the time, in May 2007, when the applicant became aware of the decision in Lo Wai Ming’s case, his latest affirmation indicates he was advised that the Judge’s closing had “covered the problems at the trial”.  Furthermore, and significantly in the context of the present application, he was advised that his abandonment of appeal in 2001 “had extinguished any further right of appeal”.  He does not depose to having expressed any surprise at this advice on the basis he did not understand that was the effect of his Notice of Abandonment in July 2001.  This, in our view, is a telling factor.  If he had truly thought that his appeal was in suspense, one would have expected him to express some surprise and concern over that advice as to the effect of his abandonment.

32.  The applicant then says that, in April 2009, he heard from his village representative suggesting that the ruling in Lo Wai Ming was inconsistent with his case and could be an arguable point on appeal.  However, even then, it was not until 18 July 2010, over a year later, that he made his application to treat the abandonment as a nullity.

33.  We therefore reject the applicant’s assertion, made in his first affirmation and repeated in his latest affirmation, that he understood that, notwithstanding his abandonment of his application for leave to appeal against conviction, he could “… still have a chance to make an application to appeal again when additional reasonable grounds of appeal were raised”.

Conclusion

34.  For these reasons, we concluded that the applicant failed to satisfy the applicable nullity test and the application to treat the abandonment as a nullity was accordingly dismissed.