HKSAR v. WONG LIN HUNG AND OTHERS

Press Summary (English)

Press Summary (Chinese)

FACC No 4 of 2016

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 4 OF 2016 (CRIMINAL)

(ON APPEAL FROM CACC NO 52 OF 2011)

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REASONS FOR JUDGMENT

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Mr Justice Tang PJ:

1.  On 13 January 2011, the appellants were convicted after trial in the High Court and were sentenced to substantial terms of imprisonment.[1]  Their applications for leave to appeal against conviction were unsuccessful and ended on 17 December 2013.[2]

2.  On 22 January 2013, 8 February 2013 and 21 January 2014, the 3^rd, 2^nd and 1^st appellants respectively, filed applications for an extension of time to give Notice of Application for Leave to Appeal against Sentence.  The applications were dismissed by the Court of Appeal[3] on 25 June 2014 when the Court also ordered under s 83W(1)[4] that two months of the time during which the applicants were in custody pending the determination of their applications should not be reckoned as part of their respective terms of sentence.[5]  The joint Reasons for Judgment was delivered on 15 September 2014.  However, on that occasion, in an addendum McWalters JA expressed his concern:

“that the Court of Appeal may not be empowered to order loss of time under section 83W(1) on a prisoner who is applying for an extension of time in which to seek leave to appeal, simply because he would not be, at that time, an applicant for leave to appeal.”

3.  On 30 March 2016, the Appeal Committee granted leave to appeal so that we could decide whether the Court has power under s 83W(1) of the   Ordinance to make a loss of time order in such circumstances.  After hearing submissions from Leading Counsel for the appellants, the Court dismissed the appeal with Reasons for Judgment to be provided.

4.  Under s 82,[6] a person convicted on indictment[7] may appeal to the Court of Appeal as of right on any ground which involves a point of law alone;[8] and with the leave of the Court of Appeal, on any ground which involves a question of fact alone, or a question of mixed law and fact, or on any other ground which appears to the Court of Appeal to be a sufficient ground of appeal.  

5.  Section 83Q provides that a person who wishes to appeal or to obtain leave to appeal should give “… notice of appeal or, as the case may be, notice of application for leave to appeal, in such manner as may be provided by rules and orders made under section 9.”[9]  Section 83Q(2) states the time limit within which such notices should be given.  However, the time limit “may be extended, either before or after it expires, by the Court of Appeal.”[10] 

6.  Section 83W is the provision under consideration in this appeal and provides:

“(1) The time during which an appellant is in custody pending the determination of his appeal shall, subject to any direction which the Court of Appeal may give to the contrary, be reckoned as part of the term of any sentence to which he is for the time being subject.

(2) Where the Court of Appeal gives a contrary direction under subsection (1), it shall state its reasons for doing so; and it shall not give any such direction where –

(a) leave to appeal has been granted; or

(b) a certificate has been given by the judge of the court of trial under section 82; or

(c) the case has been referred to it by the Chief Executive under section 83P.”

7.  Mr Bruce SC, for the appellants relied on the language of s 83W.  He submitted that the plain language of the section shows loss of time could only be ordered in respect of an appellant and only for the time during which his appeal was pending.  That being the case, s 83W plainly covers a person who is entitled to appeal as of right.  But, it would not cover a person who needs leave to appeal.  An applicant for leave to appeal would not be an appellant before he was granted leave to appeal, and that is why “appellant” is defined in s 2 to include “a person who has given notice of application for leave to appeal.”  Absent such an inclusive definition, s 83W would not cover an applicant for leave to appeal.  The fact that the definition was not exhaustive does not matter.  It extended the word appellant to include an applicant for leave to appeal.  Absent an equivalent extension, “appellant” would not include an applicant for an extension of time.

8.  Mr Bruce also relied on Hau Kin & Others[11] v HKSAR[12] where at para 4, Li CJ said:

“On a plain reading of [s 83W(1)], the time is the period between the filing of his application for leave to appeal and the determination of his appeal. The determination of an appellant’s appeal is only pending after he has filed his application for leave to appeal.”

9.  In Hau Kin, this Court was concerned with three appeals which were heard at the same time.  One of them, namely, the appeal by Ho Fook Shing,[13] was in respect of an application for leave to appeal against sentence out of time.[14]  Ho, who had pleaded guilty was sentenced on 6 May 1998, and his application was made on 9 November 1999.  Hence, Wong JA said he was out of time for nearly 1½ years,[15] and refused leave to appeal out of time.  Also, because his application was completely devoid of merit, the Court ordered a three months’ loss of time.  However, there were only two months and three days between 9 November 1999 when Ho’s application was lodged and 13 January 2000, when the application was dismissed, for that reason, this Court reduced the loss of time to two months and three days.[16]  So, in Hau Kin, albeit without the benefit of any argument to the contrary, this Court proceeded on the basis that loss of time could be ordered in respect of an applicant for an extension of time.

10.  Mr Bruce submitted, rightly so, in our view, that this appeal turns on the proper construction of s 83W.  The approach to statutory construction is well settled.  The statutory language is construed according to its context and purpose.[17]

11.  The purpose of s 83W is clear.  In Chau Ching Kay v HKSAR,[18] this Court explained that the purpose of the power to order loss of time was to deter unmeritorious applications which would otherwise take up time which could be better spent on meritorious cases.

12.  Section 83W is identical to s 29 of the English Criminal Appeal Act 1968 (“the Act”) on which it was based.  There is also an identical definition of “appellant” in s 51(1) of the Act.  The English Courts also regarded the purpose of s 29 to be the deterrence of unmeritorious appeals to avoid delay in the hearing of meritorious appeals.[19]

13.  Sections 83Q and 83W provide the context: the timely disposition of appeals or applications for leave to appeal and the deterrence of unmeritorious appeals or applications.  An appeal is a process which begins with its initiation and ends at its termination.  Whether the process is initiated by an appeal or application for leave to appeal within time, or an application for an extension of time to do so, the Court would examine the proposed ground of appeal for merits, as Lunn VP said in the joint Reasons for Judgment below “so as to ensure that should it refuse the application for an extension of time it would not be ‘shutting out a substantial and plainly arguable ground of appeal.’”[20]

14.  Mr Bruce also fairly accepted that in reality, in terms of wasted time, an unmeritorious application for an extension of time to appeal or for leave to appeal may well take up more time than an application made within time.

15.  That being the case, it is obvious and, Mr Bruce could not contend otherwise, that there is no discernible policy reason why the power to order loss of time should not extend to an application to appeal or for leave to appeal out of time.

16.  Mr Bruce submitted, however, that conceptually, an application for an extension of time to appeal or for leave to appeal, is not an appeal or an application for leave to appeal.  So, even if it was an oversight that the definition was not extended to cover an application for an extension of time, we should not give the word “appellant” a meaning which it cannot bear.

17.  As long ago as 1990, in R v Lau Kam,[21] the Court of Appeal held that an applicant for leave to appeal out of time was no less an appellant who made his application within time.  Macdougall JA giving the judgment of the Court of Appeal said:

“The application he makes, whether it is within time or out of time, is still an application for leave to appeal.”

18.  In England, where the statutory provisions are identical, loss of time orders have been made in respect of persons who applied for leave to appeal out of time.  For example, R v Anthony Brind & Others[22] where loss of time orders were made in respect of five applicants[23] who had applied for an extension of time. 

19.  Having regard to the context and purpose of s 83W, with respect, Macdougall JA was right when he said an application for leave to appeal out of time is still an application for leave to appeal.  That is the reality of the situation.  As stated above, an application for time would entail a consideration of the merits of the intended appeal, and as Mr Bruce recognized, would take as much if not more court time than an appeal or application for leave to appeal made within time.  Nor should reality give way to the so-called conceptual difference between an application for time and an appeal or application for leave to appeal. 

20.  Common sense has a place in interpretation.[24]  As the learned editor of Bennionput it “When a particular matter is not expressly dealt with in the enactment this may simply be because the drafter thought that as a matter of common sense it went without saying.”[25] As stated above, there is no conceivable policy reason why an applicant for an extension of time should not be covered by

s 83W.[26]  We do not believe the absence of an explicit inclusion in the definition of appellant was an oversight.  Rather, we believe the drafters and all those who were responsible for the enactments, in England as well as in Hong Kong, thought it went without saying that the word appellant in s 83W includes a person who appeals or applies for leave to appeal within time as well as one who applies out of time. 

21.  Mr Bruce referred us to R v Adams,[27] a decision of the Australian High Court.  But with respect, that decision does not help.  There the High Court held as a matter of statutory interpretation, the penal sections of Part XIV of the Bankruptcy Act covered only actual bankrupts and not a person who was deemed to be a bankrupt for certain purposes.

22.  Mr Martin Hui SC for the respondent has in his helpful and comprehensive written submissions pointed out that the statutory form prescribed for an application for an extension of time, namely, Form XI, shows quite clearly that it is a composite application for an extension of time and for leave to appeal or appeal as the case may be.  Form XI shows quite clearly that an application for an extension of time to appeal or for leave to appeal is regarded as in effect an appeal or application for leave to appeal although an explanation for the delay is also required.  Form XI was made under the Criminal Appeal Rules (“CAR”) Cap 221A.[28]  CAR 3 should also be noted.  It reads “A notice of appeal, notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, shall be signed by the appellant himself, …” (emphasis added).  Mr Bruce accepted that s 83W has long been regarded as applicable to an applicant for an extension of time and that the Criminal Procedure Rules, Form XI which was made under them as well as the decisions of the Courts, in Hong Kong as well as in England, including the decision under appeal, all support the view that s 83W was applicable to an applicant for extension of time.  However, Mr Bruce contended that the true construction of s 83W requires a different answer.  For the reasons given above, we do not agree.