HKSAR v. LI GUOQIANG

CACC 198/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 198 OF 2005

(ON APPEAL FROM DCCC NO. 1146 of 2004)

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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 matter is before us as an application for leave to treat the applicant’s abandonment of his application, dated 9 May 2005, for leave to appeal against conviction and sentence as a nullity.  On 15 August 2005, the applicant signed a ‘Form VII’ notice of abandonment which stated:

“I, … having sent notice of appeal to the Court of Appeal against my said conviction and sentence … passed upon me on my said conviction, give notice that I abandon all further proceedings in regard thereto.” (Emphasis added)

2.  The applicant has now provided an explanation for his abandonment, supported by an affirmation dated 11 May 2006, in which he stated in effect that, without legal representation, he was misled by other prisoners into thinking his appeal was without hope and so he gave up his right to appeal “for the time being”.

3.  This was followed soon afterwards by a further affirmation, dated 25 July 2006, in which the applicant expanded on his decision to abandon his appeal.  He said, amongst other things:

“4. With the thought that I should temporarily abandon my appeal, I went to see the social officer in the prison and told him about my decision to temporarily abandon my appeal.  I asked him whether I could appeal later in the future and he told me in the affirmative.  As a result, with the belief that I was only temporarily abandoning my appeal, that I could appeal later in the future, I filed the Notice of Abandonment dated 15 August 2005.  What I had in mind was that I was only temporarily abandoning my appeal, and I would appeal later when I found appropriate assistance.

5. In fact, after filing Notice of Abandonment, I had sought to find out if there were any other ways I might get assistance for my appeal.  I came to know that the Bar Association might give assistance freely.  As soon as I knew that [the] Bar Association might be able to help me and how to contact them, I immediately contacted the Bar Association regarding my appeal.  This shows that I did not know that and I have never intended that I meant to completely forfeit my right to appeal by filing the Notice of Abandonment.”

4.  In deciding this issue, we have to be satisfied that the applicant’s abandonment was not the result of a deliberate and informed decision or, in other words, that the applicant’s mind did not go with the act of abandonment (see: HKSAR v Lai Siu-cheung [2005] 1 HKLRD 1).  For present purposes, it is for the applicant to provide cogent material to demonstrate that his decision not to proceed with his appeal on 15 August 2005, which in turn led him to sign the ‘Form VII’, was because he was acting under a mistaken belief that this was only a temporary abandonment.

5.  We do not accept the applicant’s explanation.

6.  Firstly, the terms of the Form VII which the applicant signed are unambiguous.  It is plainly stated, both in English and Chinese, that “all further proceedings” were abandoned.

7.  Secondly, the applicant (D2 at trial) had not made his application for leave to appeal in isolation.  His co-defendant (D1) had also done so and, although D1 had similarly been denied legal aid, he maintained his appeal.  Indeed, the fact that he did so with a fair measure of success is a factor which no doubt was instrumental in the applicant’s change of heart when he renewed his attempt to obtain leave to appeal by asking for his earlier abandonment of such proceedings to be nullified.  If the applicant had really wished to proceed with his application for leave to appeal at some future time, all he needed to do was to ask for an adjournment in order, to take the example he gives, to consult the Bar Association.

8.  We might add that no attempt has been made to identify the social welfare officer in the prison who spoke to the applicant so that no evidence is forthcoming from that quarter.  Furthermore, the notion that a social welfare officer would give misleading advice to a prisoner of the kind referred to by the applicant, on a topic as fundamental as this, is far-fetched.

9.  Accordingly, the application must be dismissed.

10.  It is right to point out, as Ms Louisa Lai for the respondent also suggested to the applicant’s legal representatives on 3 August 2006, that the proper remedy in the present situation is to petition the Chief Executive under section 83P of the Criminal Procedure Ordinance, Cap. 221, if it is felt that the applicant has suffered an injustice.  It is to be noted in this regard that the applicant and D1 each faced two charges of conspiracy to defraud which alleged what amounted to street scams by means of which innocent passers-by were lured into parting with their money on the promise of quick and substantial profits held out to them if they contributed towards the purchase of goods which it was said would be sold quickly.

11.  Following conviction after trial before Judge Chua in the District Court, D1 and the applicant each received sentences of 3 years’ imprisonment on the 1^st charge and, on the 2^nd charge, 3 years with 1 year and 4 months’ imprisonment of that term to run consecutively, making 4 years and 4 months’ imprisonment in all.

12.  The success of D1’s appeal in practical terms has been that on the 1^st charge, after his case went back for retrial on that charge alone, he was able to plead guilty.  He then received a sentence of 2 years’ imprisonment.

13.  The same ground of appeal which was successfully raised on D1’s behalf would, it seems, be equally likely to succeed in the applicant’s case.  In these circumstances, the applicant may feel that he would be well advised to adopt the remedy of petitioning the Chief Executive which we, as well as Ms Louisa Lai, have drawn to his attention.