HKSAR v. WONG LIN HUNG AND OTHERS

CACC 52/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 52 OF 2011

(ON APPEAL FROM HCCC NO. 136 OF 2010)

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D E C I S I O N
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Hon Lunn VP and Macrae JA (giving the Decision of the Court):

1.  By a judgment handed down on 15 September 2014 the Court, constituted by Lunn VP and McWalters JA, dismissed the applications of the applicants for leave to appeal against sentence out of time. The applicants were convicted on 13 January 2011 after trial by Deputy High Court Judge E Toh, as she was then, and a jury of an offence of conspiracy to commit robbery on and between 1 June and 4 August 2009, contrary to sections 159A and 159C of the Crimes Ordinance, Cap. 200 and section 10(1) and (2) of the Theft Ordinance, Cap. 210 (Count 1). Further, the 1^st applicant was convicted of an offence of possession of arms without a licence on 3 August 2009, namely a stun gun, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap. 238 (Count 2).

2.  On 26 January 2011 the 1^st applicant was sentenced to 10  years’ imprisonment and the 2^nd and 3^rd applicants to 8  years’ imprisonment respectively for Count 1.  The 1^st applicant was sentenced to 1 year’s imprisonment for Count 2, which sentence was ordered to be served concurrently with the sentence imposed on Count 1.

3.  Their applications for leave to appeal against conviction having been dismissed by this Court on 17 January 2013, the applicants applied for leave to appeal to the Court of Final Appeal.  On 17 December 2013, the Appeal Committee of the Court of Final Appeal dismissed their applications.

4.  On 22 January 2013, 8 February 2013 and 21 January 2014 the 1^st, 2^nd and 3^rd applicants respectively applied for an extension of time to give Notice of Application for Leave to Appeal against Sentence.  By the first of those dates, the application was out of time by 23 months and by the last day the application was almost three years out of time. 

5.  On 25 June 2014, at the hearing, this Court dismissed the applications.  After hearing from the applicants, pursuant to section 83W(1) of the Criminal Procedure Ordinance, Cap. 221[1] the Court ordered that two months of the time during which the applicants were in custody pending determination of their applications shall not be reckoned as part of the term of the sentences to which they were for the time being subject (“loss of time”).  On 15 September 2014 this Court gave its Reasons for Judgment, in which the Court said that it was satisfied the reasons advanced to explain and excuse delay and the proposed grounds of appeal were wholly unmeritorious.

6.  By a Notice of Motion, filed with the Court on 18 November 2014, the applicants asked for a certificate, pursuant to section 32(2) of the Court of Final Appeal Ordinance, Cap. 484, that a point of law of great and general importance is involved in the decision of the Court delivered on 25 June 2014, namely :

“ Whether on the true construction of Section 83W of the Criminal Procedure Ordinance, Cap. 221 the decision of the Court on 25 June 2014 refusing an application for an extension of time within which to bring an application for leave to appeal against sentence was a decision which empowered the Court to order under section 83W(1) of the Criminal Procedure Ordinance, Cap. 221 that two months of the time during which the applicants are in custody pending determination of their applications shall not be reckoned as part of the term of sentences to which they are for the time being subject.”

7. In an Addendum to the joint judgment of Lunn VP and McWalters JA, the latter expressed his concern, which had arisen subsequent to delivery of the judgment, as to the power in the Court “to order loss of time under section 83W(1) on a prisoner who has applied 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.[2]”

8. On behalf of the applicants, Mr Bruce SC acknowledged that section 2 of the Ordinance provides that the term “appellant” includes a person who has given notice of application for leave to appeal.  However, it was contended that the application before the Court was an application for an extension of time only.  Only if that application was granted, would the Court move on to consider the notice of application for leave to appeal against sentence.  In the event, the application was refused, so that the application for leave to appeal against sentence was never considered.  The applicants had never given notice of their respective applications for leave to appeal against sentence and therefore were not appellants, subject to a ‘loss of time’ order.

9. Alternatively, Mr Bruce submitted that by operation of section 83Q(3) of the Ordinance, which provides that, “The time for giving notice under this section may be extended, either before or after it expires, by the Court of Appeal” the applicants were not in a position to give notice unless and until this Court granted an extension of time for so doing.  None had been granted.

10. Finally, Mr Bruce submitted that the judgment of this Court in R v Lau Kam was not directly on point.  There, in considering whether or not it had power to order ‘loss of time’, this Court had accepted that “an applicant who applies for leave to appeal out of time is no less an appellant than a person who makes his application for leave to appeal within time.  The application he makes whether it is within time or out of time, is still an application for leave to appeal.[3]

11. Mr David Chan, for the respondent, objects to the application for a certificate on the basis that the application is made almost two months out of time and that no good reason has been advanced for the delay.[4]

12. Mr Chan submitted that the judgment of this Court in R v Lau Kam, a considered decision of three judges of this Court, is a complete answer to the question in respect of which certification is sought:

“ …an applicant who applies for leave to appeal out of time is no less an appellant than the person who makes his application for leave to appeal within time. The application he makes, whether it is within time or out of time, is still an application for leave to appeal.”

A consideration of the submissions

13. Section 83G of the Ordinance allows a person who has been convicted of an offence on indictment to appeal to the Court of Appeal against any sentence imposed on him for the offence.  Section 83I(1) of the Ordinance provides that an appeal lies only with the leave of the Court of Appeal.  Section 83Q describes the initiation procedure by which an appeal is begun.  Section 83Q(1) provides that a person who wishes to appeal or to obtain the leave of the Court of Appeal to appeal shall give notice as provided, inter-alia, by the rules.  Section 83Q(2) provides, inter-alia, that notice of an application for leave to appeal against sentence, is to be given within 28 days after the date of sentence was passed.  Section 83Q(3) provides that “The time for giving notice, under this section may be extended, either before or after it expires, by the Court of Appeal.”

14. Clearly, it was pursuant to section 83Q(3) that the applicants were seeking to initiate their right to appeal against sentence by applying for leave out of time.  The purpose of their application was to have their applications for leave to appeal against sentence determined by the Court of Appeal.  In doing so, the applicants fell to be regarded as appellants within the description of that term in section 2 of the Ordinance, which provides that an appellant “includes a person who has given notice of application for leave to appeal”.

15. Moreover, we are satisfied that the considered decision of this Court, in a strongly constituted panel, in R v Lau Kam [5] is binding on this Court.  Further, it is to be noted that the judgment of Li CJ in the Court of Final Appeal, with whom all the other judges agreed, in Hau Kin & Others v HKSAR [6], addressed the period of time which could be subject to a ‘loss of time’ direction.  Albeit that the ‘loss of time’ imposed on the appellantHo Fook Shing was varied from 3 months to 2 months and 3 days, nevertheless a ‘loss of time’ order was made in respect of an appellant who was applying for leave to appeal against sentence out of time.  Having been sentenced to 10 years’ imprisonment on 6 May 1998, the appellant had not filed his application for leave to appeal against sentence out of time until 9 November 1999.

16. As Mr Chan pointed out in his written submissions, a contrary construction of the provisions would afford an advantage to an applicant who did not comply with the time provisions for giving notice of an application for leave to appeal, excluding such a party from the risk of being the subject of a ‘loss of time’ order.  Whereas, by contrast, an applicant who complied with the time provisions would be at risk of being made the subject of such an order.

17. We are not satisfied that a point of law of great and general importance is involved in the decision of the Court and would dismiss the application.

Hon McWalters JA :

18. I shall not repeat the concerns which prompted me to write the addendum to the joint judgment of Lunn VP and myself in this case as they are sufficiently articulated at paragraphs 28-35 therein.  Suffice it to say they concern the liberty of the individual and the power of the Court of Appeal to deprive a person of their liberty by recourse to section 83W(1).  As encapsulated in the question for which a certificate is sought they raise a point of law which, in my view, qualifies as a point of law of great and general importance.  I would not allow the delay in seeking the certificate, which I regard as essentially systemic delay, as reason not to grant the certificate.  That being so it seems to me the only issues are whether the law is well settled on this point by the earlier decision of the Court of Appeal in R v Lau Kam, CACC 428/1989; unreported 11 May 1990 and, if not, whether the contentions of the applicants are reasonably arguable.  For the reasons set out in my addendum, and for the reasons advanced by Mr Bruce SC, for the applicants, I believe it can be said that, notwithstanding the judgment of this court in Lau Kam the law is not well settled and the contentions of the applicants are reasonably arguable.  I would grant the application for a certificate.

Hon Lunn VP :

19. In the result, we are not satisfied that a point of law of great and general importance is involved in the decision of the Court.  Accordingly, the application is dismissed.

[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] HKSAR v Wong Lin Hung & Others (CACC 52/2011; unreported, 15 September 2014) paragraph  35.

[3] R v Lau Kam (CACC428/1989; unreported, 11 May 1990).

[4] Practice Direction 2.2, paragraph 3–the application for a certificate to the Court of Appeal is to be made “immediately after the judgment”; Practice Direction 4.3, paragraph 4–the application for a certificate to the Court of Appeal is to be made within 7 days of the handing down of the judgment.

[5] R v Lau Kam (Yang CJ, Silke VP and Macdougall JA).

[6] Hau Kin & Others v HKSAR (2005) 8 HKCFAR 63.