HKSAR v. EKELEDO NANDIPHA EUNICE

CACC 270/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 270 OF 2011

(ON APPEAL FROM HCCC NO. 129 OF 2011)

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J U D G M E N T

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

The Application

1. On 16 October 2010, the applicant was intercepted at the airport and found to be carrying a total of 54 packets containing 407.1 grammes of a solid containing 331.61 grammes of cocaine.

2. She pleaded guilty to one charge of trafficking in a dangerous drug contrary to s. 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap. 134) and, on 17 June 2011, she was sentenced by Line J to a term of imprisonment of 8 years and 4 months.

3. The applicant gave notice of an application for leave to appeal against sentence on 6 July 2011.  Her submission annexed to the application stated:

“I would like to request for an appeal sentences [sic] and to get legal aid lawyer. Thank you.”

4. However, legal aid was refused on 9 August 2011.

5. On 19 August 2011, the applicant filed a notice of abandonment giving notice that she abandoned all further proceedings in regard to her appeal.  The notice was signed by the applicant and the submission annexed to the notice, which was also signed by her, stated:

“I am requesting to cancel my appeal for sentence. The reason is because I don’t think I will win it. Thank you.”

6. Upon this application, the application for leave to appeal was duly marked as dismissed on 23 August 2011.

7. On 6 November 2012, the applicant lodged an application to treat her earlier abandonment of the appeal as a nullity in order to pursue her application for leave to appeal against sentence.

8. In her affirmation in support of the application, she stated:

“I am re applying to appeal against my sentence. The last time I appealed I did cancel my appeal because I didn’t have no legal aid lawyer to represent me in Court.”

9. Her affirmation continued by explaining that she wished to appeal against her sentence on grounds relating to her family circumstances and her health.

The submissions

10. The applicant acted in person before us, legal aid for the proposed application for leave to appeal against sentence having been refused on 23 November 2012.

11. At the hearing, the applicant confirmed the contents of the notice of abandonment and her affirmation made in support of the application to treat the abandonment as a nullity.

12. In addition, at the hearing today, she repeated that she did not pursue her appeal due to the lack of legal representation.

The applicable legal prinicples

13. Unless the abandonment of the earlier appeal is treated as a nullity, this court has no jurisdiction to entertain the abandoned appeal.[1]

14. It is well-established 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.[2]

15. 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 or her act of abandonment.[3]

16. 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 appeal is not advice that goes to the nature, or to the effect of the signing of, the document.[4]

17. 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 and it is thus irrelevant to consider the merits of the application for leave to appeal against conviction until that nullity test is satisfied.[5]

Disposition

18. Applying these principles to the present case, we are left in no doubt that the nullity test is not satisfied by the applicant here.  Although the approximately 14-month period from the notice of abandonment to the application to treat the abandonment as a nullity is not unduly long in the context of the sentence she is serving, the statement made by the applicant annexed to her notice of abandonment is clear, concise and simple.  There is nothing to suggest to us that, when she signed this statement, she did not know what she was doing and did not realise that, in consequence, she was giving up her appeal.  Indeed, she said as much in requesting to “cancel” her appeal.

19. That conclusion is reinforced by the applicant’s affirmation in support of the application to treat the abandonment as a nullity where she acknowledges that she had earlier appealed but had cancelled her appeal.  The reason given for her doing this, namely that she did not have legal aid representation, does not lend any weight to support the notion that she did not have an understanding that her abandonment of the appeal was a conscious decision on her part.

20. Nothing the applicant has said to us today assists her to discharge the burden on her to satisfy the nullity test.

21. The application before us to treat the abandonment as a nullity is, therefore, dismissed.

22. That being the case, the merits of the underlying application for leave to appeal against sentence are simply not relevant matters for us to consider.

[1]   HKSAR v Lai Siu Cheung [2005] 1 HKLRD 1 at §23.

[2]   ibid. at §24.

[3]   ibid. at §25.

[4]   ibid. at §28.

[5]   HKSAR v Lam Kam Fai & Anor [2006] 2 HKLRD 879 at §44.