R. v. LO HING WAI

MP 3101 of 1993

HEADNOTE

Criminal Law and Procedure - Magistracy Appeals - application for leave to appeal out of time - s. 114A Magistrates Ordinance, Cap. 227 - whether applicant for leave has right to oral hearing - whether necessary to state grounds of appeal in application for leave - whether High Court judge has power to review his decision to refuse leave.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS NO. 3101 OF 1993

_________

JUDGMENT

_________

1. This was an application for leave to appeal out of time against conviction.

2. On the 9th July 1993, the applicant was tried by a magistrate and convicted of two offences, to wit inducing a person to become a member of a triad society and being a member of a triad society. He was ordered to be detained in a Training Centre.

3. On a Form 103 dated the 18th August 1993 the applicant applied to a magistrate for an extension of time in which to appeal against the convictions. No ground of appeal was stated. The magistrate dismissed the application when it came before him on the 19th August.

4. The applicant, then, by Form 103 dated the 25th August 1993, applied to a High Court judge for leave to appeal out of time against conviction. There was no indication of any ground of appeal. The reason given for the delay in filing a notice of appeal was that the applicant had been discussing with his mother the prospect of employing a private solicitor for the purpose of an appeal. When the application came before me in Chambers on the 31st August 1993, I dismissed it on the basis that the applicant had failed to show good cause for granting an extension of time.

5. On the 4th October 1993, solicitors acting for the applicant filed a further application, this time for leave to appeal out of time against both conviction and sentence, together with an affidavit in support, indicating some contemplated grounds of appeal against conviction and sentence. That was almost three months after the conviction.

6. Having heard submissions made by counsel for the applicant and the respondent, I concluded that it was not open to me, having dismissed the application on the 31st August, to hear a further application, for I was functus officio.

7. The procedure relating to extension of time for giving notice of appeal against any conviction, order or determination by a magistrate is governed by section 114A of the Magistrates Ordinance Cap. 227. Sub- section (1) of that section reads as follows:

" (1) Where it appears to a magistrate or to a judge, on application made in accordance with subsection (2), that any person wishing to appeal against any conviction, order or determination by any magistrate has failed to give the notice of appeal required by section 114 within the period of 14 days prescribed by paragraph (a) thereof, the magistrate or the judge, as the case may be, may, on good cause being shown by the applicant, order that such notice may be given within such further time as shall be specified in such order."

8. In Wong Kai Kong Cri. App. No. 332 of 1989, the Court of Appeal held that it was open to it to look at the grounds of appeal to check whether by refusing leave, they were shutting out a substantial and plainly arguable ground of appeal. The Court added, however, that substantial grounds for the delay must be shown before the granting of the indulgence.

9. There is no specific requirement in section 114A to state grounds of appeal. An applicant does, however, have to show good cause for granting an extension of time and that must entail explaining the delay. It is very much in an applicant's interest to state his grounds of appeal for if they appear to have merit they may persuade a magistrate or a judge to give leave even where the excuse for the delay is not as strong as it might be.

10. In R v. Croydon Crown Court. Ex parte Smith [1983] 77 CAR 277, it was held that although under Rule 7 of the Crown Court Rules 1982 it was proper for a judge, in his discretion, dealing with an application for leave to appeal against conviction, to take into account the merits of such an appeal, there was no general duty to give reasons for his decision to refuse leave. Neither did an applicant have a right to an oral hearing.

11. Rule 7 of the Crown Court Rules 1972 provides that:

"...(5) The time for giving notice of appeal ... may be extended either before or after the time that it expires by the Crown Court on an application made in accordance with paragraph (6).

(6) An application for an extension of time shall be made in writing specifying the grounds of the application and sent to the appropriate officer of the Crown Court ..."

12. In that case a judge in Chambers had refused leave to appeal against conviction and sentence without giving reasons, in circumstances where no grounds of appeal had been stated in an application for leave to appeal out of time. The judge reviewed her decision and granted leave to appeal against sentence only. The Crown Court had erroneously listed for hearing a further, oral, application but the judge refused to hear it.

13. Taylor J., giving the judgment of the Divisional Court said :

"In our judgment it is quite wrong to suggest that an applicant has a right in each case to an oral hearing. The procedure set out in the rules clearly contemplates that a written application will normally form the basis of the decision. There will be cases in which, as a matter of discretion, the court may grant an oral hearing but those will be rare. In so far as this ground of appeal is based on an assertion of a general right to an oral hearing it fails."

14. As it happened, certiorari and mandamus were granted for the hearing of an oral application for leave, but only because the court felt that the applicant had been led to believe by the erroneous Crown Court Listing that he would have an oral hearing, so that he might well feel a justifiable sense of grievance.

15. In my judgment, the situation in Hong Kong is similar to that in England where there is an application for leave to appeal out of time from the decision of a magistrate or magistrates. The normal procedure is for a magistrate or judge to consider the written application in Chambers and to decide upon it. It is, however, open to the magistrate or judge in his discretion to cause the application to be listed for an oral hearing.

16. In R v Pinfold [1988] 2 All ER 217, a convicted murderer's appeal against conviction was heard and dismissed. He later applied for leave to appeal again, on a ground which had not been available to him on the original appeal, fresh evidence having come to light. Leave was refused on the basis that in view of the principle that there should be a limit to legal proceedings, "an application" means one application.

17. The applicant in the present case, however, relied upon the following passage in the judgment to the Court of Appeal in Pinfold :

"So far as the 1968 Act is concerned, there are perhaps two possible exceptions, or apparent exceptions, because that is what they are, to that rule. First of all, where the decision on the original appeal, if I may call it that, is a nullity. This is more commonly applied where there has been an application to treat a notice of abandonment as a nullity. The second occasion, which may be simply an example of the first, is where, owing to some defect in the procedure, the appellant has on the first appeal being dismissed, suffered an injustice, where, for example, he has not been notified of the hearing of the appeal or counsel has been unable to attend, circumstances such as that."

18. It is suggested on behalf of the applicant first, that the first application to a High Court judge was a nullity since it stated no grounds of appeal. It is secondly suggested that if the notice was not a nullity there was an injustice because the application was not listed for an oral hearing when the applicant might have produced some grounds of appeal which might have found favour with the judge. Thirdly, it is suggested that a High Court judge in Hong Kong must have the power to review his decision to refuse leave because it would appear that in R v. Croydon Crown Court (supra) it was assumed that a Crown Court judge in England has such a power and because the Hong Kong Court of Appeal can grant leave to appeal in circumstances where it has been refused by a single judge.

19. As to the first argument, there is no requirement to state grounds of appeal and it cannot be said that an application is a nullity where grounds of appeal are not stated.

20. With regard to the second argument, the applicant had no right to an oral hearing of his application for leave. Nothing was done in this case to afford to him reasonable grounds for believing that there would be such a hearing. Even if something had been done to arouse in him a justifiable sense of grievance, the remedy would not lie in my hands.

21. Counsel for the applicant has been unable to draw my attention to any power vested in me to review my own decision in this case.

22. I do not think that anything can be gained from looking at the procedure in the Court of Appeal. The statutory procedure for applying for leave to appeal out of time against the magistrate's decision provides for a two stage filtering process. It is open to a would-be appellant to apply both to a magistrate and thereafter to a High Court judge.

23. The principle that there must be finality in litigation applies. The applicant has made two applications. Those applications have been dismissed. There is no jurisdiction in a High Court judge to hear a further application in those circumstances and I accordingly declined to entertain what would have been the applicant's third application.

Appeal against Sentence

24. The application which came before me was the applicant's first attempt to obtain an extension of time for giving notice of appeal against sentence. Reasons for delay and grounds for appeal were stated in the applicant's affirmation and the exhibits annexed thereto. So far as reasons for delay are concerned, the applicant frankly stated that the delay was entirely due to his own fault. Nevertheless, bearing in mind what was said in Wong Kai Kong (supra) I heard de bene esse the arguments that counsel for the applicant proposed to put forward in support of the appeal against sentence. Having done so I did not consider that by refusing leave I would be shutting out a substantial and plainly arguable ground of appeal. The application was therefore dismissed.

25. As a footnote I would mention that when counsel first came before me there was a suggestion that the applicant might wish to argue that Article 11(4) of the Bill of Rights Ordinance conferred on him an absolute right to have his application heard in open court. I adjourned the hearing to enable counsel to research the point. When they returned they informed me that they could find no authority to support that suggestion and that the authorities they could find were against it. The applicant did not in the circumstances pursue the point.