HKSAR v. LEE TAT WAN

CACC 647/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 647 OF 1999

(ON APPEAL FROM HCCC 34 OF 1993)

______________

______________

_______________

J U D G M E N T

_______________

Stuart-Moore VP (giving the judgment of the Court):

1. On 19 November 1999, the Applicant, now aged 49, pleaded guilty before Gall J to two counts of trafficking in mixtures containing salts of esters of morphine (heroin). These offences, which are the subject of the present proceedings, were committed on 11 November 1992. Somewhat surprisingly, the Applicant was permitted to remain on bail after his arrest on 11 November 1992.

2. An added complication to the extended chronology of events was that, on 13 July 1993, the Applicant committed a further offence of trafficking. Despite this, he was still allowed to remain on bail.

3. It was after his arrest for the last offence that he absconded and, thereafter, he remained at large for about six years.

4. On 7 December 1999, the Applicant was sentenced to a total term of seven years' imprisonment for the three trafficking offences, all of which were admitted by him.

5. The Applicant then gave notice of his intention to seek leave to appeal in HCCC 34/1993 which related to the earlier offences on which he had received the longest sentence. However, on or about 8 March 2000, having been refused legal aid on 16 February 2000, he abandoned the application he was making. This was followed, over a year later, by a letter from the Applicant dated 6 April 2001 which set out his reasons for applying to the court for leave to treat his earlier abandonment as a nullity. He applied for legal aid once more and this application was refused on 13 June 2001.

6. We have read the Applicant's reasons for abandoning his application for leave to appeal which to some extent he has repeated today. Whilst acknowledging in his letter that he has a lengthy criminal history, albeit he had not served a prison sentence for a considerable time prior to his present incarceration, the Applicant stated that he "withdrew his appeal" because the Department of Legal Aid would not provide him with a lawyer and he then thought there was no hope of success.

7. Having read the papers in this case in full, including the Applicant's letters, it is not difficult to see why the Applicant was without hope when he decided not to pursue his appeal. However, this misses the point involved in the present application. The court has no "inherent jurisdiction" to treat the abandonment as a nullity except in circumstances where it could be said that "the mind of the applicant did not go with his act of abandonment, so that it was not his 'true act'." (See: R v Tam Kwok [1984] HKC 184 applying R v Medway [1976] 62 Cr App R 85)

8. It is quite apparent from the information before us that the Applicant's mind did go with his act of abandonment. It was a deliberate and tactical decision on his part to take this course and the fact that he believed that he had no chance of success if he pursued his original application provides no good reason why, today, we should treat his abandonment as a nullity.

9. Accordingly, this application is dismissed.