HKSAR v. MA KAM SAN

CACC 203/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 203 OF 1999

(ON APPEAL FROM DCCC 1288 OF 1998)

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J U D G M E N T

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

1. This is an application, over two years out of time, for a certificate under section 32 of the Court of Final Appeal Ordinance, Cap. 484, that three points of law of great and general importance were involved in the decision of this court on 3 November 1999 to order six months' loss of time at the conclusion of one of the least meritorious applications for leave to appeal it is possible to imagine.

2. The questions are set out in an amended notice of motion dated 25 April 2002. The Court of Final Appeal has already given leave in HKSAR v Chau Ching-kay, Nauthum, FAMC 6/2002, where the same points are to be canvassed on fixed dates, as we understand it, in October 2002. We do not propose in the instant case to certify. Whether or not others may in the future be able to benefit from the judgment in Chau's case will be determined in the light of the Court of Final Appeal's judgment.

3. Before we leave this matter, we are disturbed by the revelation (in MKS-2) that Mr Geoffrey Watson's recollection had been, apparently, that no "verbal warning" had been issued by the court before the loss of time was ordered. This was, before the amendment of Form XI, done routinely where a warning was thought to be appropriate, and this case was no exception. Indeed, the court's contemporaneous record confirms that this was done. This was followed by an immediate adjournment for Mr Watson, who then represented this Applicant and a second applicant (D2) for the limited purpose of making an application for legal aid, to take instructions.

4. Looking at the record (repeated in part in MKS-4) which was compiled by Miss Amy Leung, the clerk to this court, during the course of the hearing (although the typed version was prepared afterwards), it is plain that the:

"Applicants were warned by (the) court through counsel that if the applications were of no merit at all, (the) court has power to order loss of time".

5. After that, the record goes on to show that the case was stood down for a while so that Mr Watson could discuss the position with the Applicants. It was just over one and a half hours later that Mr Watson was ready to resume. He indicated that the two Applicants, both of whom were then seeking leave to appeal against conviction and sentence, wished to abandon their applications in relation to sentence but had decided to continue with their conviction applications.

6. Thereafter, Mr Watson renewed his application for legal aid. This was dismissed, as indeed were the applications for leave to appeal against sentence, because they were not being pursued.

7. The second Applicant (D2) then made an application for an adjournment which was refused. Again, by reference to the court record, it appears that a member of the public wanted to speak on the Applicant's behalf and said something from the public gallery. After that, there was an application by this Applicant for a further transcript which was refused. D2 then announced that he wanted to abandon his application in relation to conviction, and so that application was dismissed.

8. The court then continued for the whole of the rest of the day with the only remaining application for leave to appeal against conviction which the Applicant made in person.

9. The court finally rose at 5.02 p.m. having given judgment including the order for loss of time.

10. This was a particularly memorable case. The Applicant and two others were part of a dedicated Malaysian gang who targeted Hong Kong for the sole purposes of stealing from hotels in a unique and highly sophisticated fashion.

11. As we have indicated, the application for a certificate is refused. A bail application was also listed today, but bail does not arise in the light of our decision.