HKSAR v. LO WING TAT

CACC 179/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 179 OF 2003

(ON APPEAL FROM NO. hccc 398 of 2002)

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 J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

1.  The applicant, Lo Wing-tat appeared before Jackson J with a jury on a charge of trafficking in dangerous drugs.

2.  On 8 April 2003, the jury convicted the applicant, and Jackson J sentenced him to eight years and six months’ imprisonment.

3.  On 29 April 2003, the applicant filed a notice of application for leave to appeal against conviction.

4.  On 7 November 2003, the applicant abandoned his application, which was then marked dismissed.

5.  On 25 November 2003, the applicant indicated that he wished to restore his application for leave to appeal against conviction. His application was then treated as an application to nullify his previous abandonment in order to revive his application for leave to appeal against conviction.

6.  The applicant said he had earlier abandoned his application because the money he intended to use to hire a lawyer for his application was given to his family for an urgent purpose, and he could not handle the application himself.

7.  However, he wished to revive the application because his aged mother recently encouraged him to do so although he realized that his chance was slim. He also claimed to be innocent of the charge.

8.  A five-judge Divisional Court in England clearly stated the principles in relation to the court’s jurisdiction in an application to nullify an abandonment of an appeal in R v Medway [1976] 62 Cr. App. Rep. 85 where the criterion, then established and distilled from a number of other cases, was that where the abandonment was not the result of a deliberate and informed decision, then a court had jurisdiction to consider it as a nullity.

9.  This court restated such principle in HKSAR v Solis Antelo Richard, CACC 537 of 1997 and in HKSAR v Lau Kam Keung CACC 405 of 2000 (unreported), with Stuart-Moore VP presiding on both occasions.

10.  The principle has remained the same since then.

11.  The applicant, who has fifteen previous convictions, had abandoned his application for leave to appeal. There is no suggestion that it was not a deliberate and informed decision and we are satisfied that he fully understood the implications.

12.  In all the circumstances, we dismiss his application to treat the abandonment as a nullity.