CACC 278/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 278 OF 2009

(ON APPEAL FROM DCCC 235 OF 2009)

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BETWEEN

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J U D G M E N T

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

1.  The two applicants, Yeoh Sooi-hong and Yong Wei-leong, together with three others, appeared before Deputy Judge Tallentire in the District Court on a charge of conspiracy to use false instruments.

2.  The applicants, having arrived Hong Kong from Malaysia, tried to use forged credits cards to purchase expensive handbags in pursuance of a conspiracy with three others. The applicants and their accomplices were found to be in possession of 41 forged credit cards in the names of Tan Ben Hua or Ong Ka Hing. Yong Wei-leong was also in possession of a forged Singaporean passport in the name of Tan Ben Hua whereas one of the accomplices was in possession of a forged Singaporean passport in the name of Ong Ka Hing.

3.  On 25 August 2009, the applicants pleaded guilty to the charge and were both sentenced to 40 months’ imprisonment. The judge adopted a starting point of 60 months and reduced it by one-third on account of the guilty pleas.

4.  On 28 August 2009, the applicants filed notices of application for leave to appeal against sentence. Neither applicant specified any ground to support their applications.

5.  On 11 January 2010, the applicants filed notices of abandonment, abandoning all further proceedings with regard to their applications for leave to appeal against sentence and their applications were thus marked dismissed.

6.  On 7 April 2010, the applicants applied again for leave to appeal against sentence and their applications were treated as applications for the annulment of the previous abandonment. In a joint letter to the court, the applicants pointed out that in DCCC 358/2009, a case involving three Japanese who pleaded guilty to charges involving the use of 31 forged credit cards, the defendants’ sentences only ranged from 30 months to 34 months. The suggestion was that their sentences were too heavy.

7.  Both applicants gave the following identical reason for their applications:

“My application for legal aid was previously rejected by the Legal Aid Department. I am a foreigner and lack knowledge in the laws of Hong Kong. I did not know that I could act in person during the appeal.”

8.  We wish to quote two passages from the judgment in HKSAR v Lai Siu-cheung [2005] 1 HKLRD 1, which explain the principles relating to an application to treat abandonment as a nullity:

“23. It is well-established in this jurisdiction that the restoration of an appeal after an abandonment is permissible only where it can be demonstrated that the abandonment of the original application was a nullity. The reasoning to be followed is that in R v Medway (1976) 62 Cr App R 85 in which the English Court of Appeal reviewed the cases at length, and the correct principles which emerged. This Court is not empowered once an appeal has been abandoned, and therefore dismissed, to deal with an appeal. To do so would require statutory authorization and for that none exists, save the power conferred by s 83P of the Criminal Procedure Ordinance (Cap 221). There is no inherent jurisdiction to hear an appeal which has been dismissed. Once an appeal has been dismissed, the Court of Appeal is functus officio and it is established that there is no co-existing inherent jurisdiction to enable the court to permit an appeal to be reopened because of special circumstances falling short of an abandonment having been a nullity…

28.       …once an appeal has been dismissed, the court is funtus unless the dismissal was itself based on an act which was a nullity; that when one asks whether an act is a nullity, it is to the act of abandonment itself that one looks; and the approach recognizes, also, that the right of appeal is conferred by statute and that there is no inherent jurisdiction to entertain the reopening of an appeal once dismissed. 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 the underlying appeal is not advice that goes to the nature, or to the effect of the signing of, the document…”

9.  Ma CJHC (as he then was) makes a similar point in HKSAR v Law Kam Fai & Another[2006] 2 HKLRD 879, and further suggests at p 893 H-J:

“…the test to be applied is that the court must be satisfied that the abandonment was not the result of a deliberate and informed decision, meaning that the applicant’s mind did not go with the act of abandonment. 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.”

10.  There is no suggestion from either of the applicants that he did not know what he was doing when he signed and filed the Notice of Abandonment. The suggestion that they lacked knowledge in the laws of Hong Kong is not in this case a valid reason to treat their abandonment as a nullity. The fact that other defendants in another case received a more lenient sentence does not nullify the applicants’ earlier abandonment.

11.  There is no foundation for us to re-consider their applications for leave to appeal against sentence, which had been dismissed. That being the case, we should not inquire into the actual merits of their applications for leave to appeal against sentence at all. The applications are dismissed.