HKSAR v. FONG CHYE FOO

CACC 309/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 309 OF 2007

(ON APPEAL FROM HCCC NO. 83 OF 2007)

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BETWEEN

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Hon Macrae JA (giving the judgment of the Court):

1.  On 24 August 2007, the applicant was convicted before Deputy Judge Line (as he then was) and a jury of a single count of trafficking in a dangerous drug, namely just over 2.1 kg of methamphetamine hydrochloride narcotic, and sentenced to 23 years’ imprisonment.

2.  On 5 September 2007, the applicant filed notice of his intention to seek leave to appeal against conviction alone, setting out in some detail two areas of complaint against the summing-up and verdict.

3.  On 17 March 2009, he filed notice of abandonment by way of Form VII of the prescribed forms under rule 39 of the Criminal Appeal Rules in the Criminal Procedure Ordinance, Cap 221 (the Ordinance).  Amongst other things, an applicant signing a Form VII notice makes a declaration in respect of his appeal to the effect that “I abandon all further proceedings in regard thereto”.  The applicant’s appeal against conviction was according deemed dismissed on the same day by the Court of Appeal in accordance with rule 39.

4.  Exactly 4 years and 5 months then passed until, on 17 August 2013, the applicant made an affirmation in support of his application to treat his earlier abandonment as a nullity.  In the course of his affirmation, he said that as a Malaysian Chinese national he was not familiar with the judicial system of Hong Kong, and that since legal aid had been refused and the Hong Kong Bar Association had declined to assist him, he could not afford to engage a private lawyer nor could he properly represent himself.  He has again emphasised before us today the difficulties he felt he would face in presenting his appeal in person.  Accordingly, in order that the matter should not drag on indefinitely, he had no alternative but to abandon his application for leave to appeal against conviction.  Now, having thought further about the matter and having consulted his family members as well as other ‘professionals’ on a voluntary basis, he believed he had sufficient and reasonable grounds to reinstate and pursue his appeal.

5.  On 2 December 2013, the applicant filed further homemade grounds of appeal which again complain about the judge’s summing up and the jury’s verdict.

6.  This Court has no statutory or inherent jurisdiction to reopen an appeal which has been abandoned and dismissed unless the abandonment can be treated as a nullity, or the matter has been referred back to the Court of Appeal by the Chief Executive, pursuant to section 83P of the Ordinance: see HKSAR v Lai Siu Cheung [2005] 1 HKLRD 1.

7.  In this case, no reason has been given by which we could conceivably say that the applicant’s mind did not go with his act of abandonment.  On the contrary, the grounds advanced in his initial home-made grounds of appeal on 5 September 2007 were entirely orderly and properly articulated.  He was even able to make written requests of the Registrar of the High Court for a transcript of proceedings which bore on his second ground of appeal.  This was duly supplied to him some time shortly after it became available on 8 July 2008.

8.  The applicant was also able in person to seek and obtain an adjournment of a mention hearing on 11 August 2008 for six months so as to enable him to find legal representation.  A new mention date was accordingly fixed for 27 April 2009.  However, that hearing was pre-empted, as we have noted, by the applicant abandoning his application for leave to appeal on 17 March 2009.

9.  We do not accept the applicant's claim, having examined his original grounds of appeal and his conduct in the lead up to his abandonment of the appeal, that he was unfamiliar with the legal system or court process or that he felt unable to argue his own appeal, having failed to obtain representation on either a voluntary or a publically or privately funded basis.  Even if that were true, it does not represent any possible basis for this Court to entertain an application for leave to appeal which has been formally abandoned and dismissed.

10.  The application is refused.