HKSAR v. SHAHID IMRAN YOUNAS

CACC 229/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 229 OF 2015

(ON APPEAL FROM DCCC 246 OF 2015)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the reasons for judgment of the court):

1. On 23 June 2015 the applicant was convicted after trial in the District Court by District Judge Woodcock (“the judge”) of a single charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. On the same day he was sentenced by the judge to 3 years 3 months’ imprisonment. He applied, within time, for leave to appeal his sentence and on 17 December 2015 his application was refused by Macrae JA.

2. By way of a notice (Form XIII), which was filed out of time on 11 January 2016, the applicant applied to renew his application for leave to appeal against his sentence.  The renewed application was made out of time by 11 days.

3. At the hearing we refused the application to renew the application for leave to appeal sentence out of time and made an order under section 83W(1) of the Criminal Procedure Ordinance, Cap 221 (“the Ordinance”) that two months of the time during which the applicant has been in custody pending the determination of his appeal shall not be reckoned as part of the term of the sentence to which he is for the time being subject.  We said that we would later hand down our reasons for refusing the application and making a loss of time order and this we now do.

The trial

4. The particulars of the charges alleged that the applicant entered a private domestic flat in Apliu Street, Sham Shui Po on 10 December 2014 as a trespasser and stole from these premises $300 Canadian currency, jewellery, watches, coins and other personal items. 

5. The flat had been damaged by a fire in the kitchen 3 days before the incident and this had caused the occupants to vacate the premises.  Around 10 am on the day of the incident, the husband and wife who lived in the flat returned with a friend who was going to help them make repairs to the flat.  On entering the flat they noticed candles had been lit and then they saw the applicant emerging from the master bedroom and walking down the corridor towards them. 

6. On seeing the occupants and their friend the applicant enquired who they were and if they had come to the flat to steal.  He then offered to share the stolen goods with them.  The wife attempted to call the police with her mobile phone but on seeing this the applicant advanced on her and tried to prevent her from making the call.  Her husband and the couple’s friend intervened to protect the wife and this resulted in a struggle between them and the applicant.  During this struggle the friend of the couple sustained an injury to his face.  Eventually, the applicant was pinned face down on the ground at the front door. 

7. After the applicant had been subdued the police arrived and the applicant was arrested.  The police searched him and found on him properties that he had taken from the flat which were worth HK$14,870.

The Reasons for Sentence

8. The judge noted that the applicant, who was aged 33 years and was unemployed at the time of the offence, had 7 previous appearances before the courts involving a total of 10 convictions, of which three were for theft, one was for criminal damage, one for assaulting a police officer and three for possession of dangerous drugs.

9. The judge noted that the normal starting point for a burglary of domestic premises is 3 years’ imprisonment and she said that she saw no reason to depart from this guideline.  However, she emphasised that this guideline was only appropriate where there was absent any aggravating or mitigating features.  She then examined the circumstances of the offence in order to assess its seriousness.  In doing so she said that the flat was not an empty or abandoned home and that the applicant had ransacked the flat, causing “a huge mess, adding to the woes of the homeowners”. 

10. She then went on to consider whether there were present any aggravating features.  In his address on sentence the applicant’s solicitor had submitted that there were none.  However, the judge found that the physical confrontation and ensuing struggle constituted an aggravating feature and for this she enhanced her starting point by 3 months. 

11. She considered that there was no mitigating factor in the applicant’s favour and sentenced the applicant to 3 years and 3 months’ imprisonment.

The respondent’s preliminary legal point

12. Mr Franco Kuan SPP, appearing for the respondent, took the preliminary point that the Court of Appeal no longer had jurisdiction to entertain the application as the effect of rule 42 of the Criminal Appeal Rules (Cap 221A) is that when an application is not renewed within time the decision of the single judge refusing leave becomes final.

13. Rule 42 of the Criminal Appeal Rules (Cap 221A) provides:

“(1) The Registrar shall, when any application mentioned in rule 41 has been dealt with by a judge, notify the decision to the appellant on Form XII.

(2) If the judge refuses all or any of such applications the Registrar, on notifying such refusal to the appellant, shall forward to him Form XIII which form the appellant is hereby required to fill up and forthwith return to the Registrar.

(3)   If the appellant does not desire to have his applications determined by the Court of Appeal, or does not return Form XIII duly filled up by him to the Registrar within 14 days, the refusal of his applications by such judge shall be final.”

The respondent also stressed that the requirement that the renewal be made within 14 days was clearly set out in the forms to which there should be adherence.

14. Mr Kuan submitted that, in contrast to the express power contained in section 83Y(2)(b) of the Ordinance to extend time within which a notice of appeal or of application for leave to appeal may be given, there was no such power in the Ordinance or the Rules empowering the Court of Appeal or a single judge to grant an extension of time for an application for renewal.

15. He said that the only potential source of such power was contained in rule 74 of the Criminal Appeal Rules, pursuant to which the court may consider waiving non-compliance with the rules.  This rule provides as follows:

“(1) Non-compliance by an appellant with these rules, or with any rule of practice for the time being in force, shall not prevent the further prosecution of his appeal if the Court of Appeal, or a single judge acting under rule 40, considers that such non-compliance was not wilful, and that the same may be waived or remedied by amendment or otherwise.

(2) The Court of Appeal, or a judge acting under rule 4O, may, in such manner as it or he thinks fit, direct the appellant to remedy such non-compliance; and thereupon the appeal shall proceed.

(3) The Registrar shall forthwith notify to the appellant any directions given by the court or a judge under this rule, if the appellant was not present at the time when such directions were given.”

16. However, Mr Kuan argued that rule 74 only dealt with matters of procedural non-compliance with the rules and did not apply to rule 42 of the Criminal Appeal Rules.  Mr Kuan argued that the effect of rule 42 that the refusal of the application “shall be final” is analogous to the position under rule 39 when an applicant files a notice of abandonment.  Under that rule the effect of the applicant’s actions is that “the appeal shall be deemed to have been dismissed”, and this provision, the courts have said, results in the Court of Appeal being functus officio.

17. However, unlike the action of abandonment which can be treated as a nullity by the Court of Appeal on it being satisfied of certain matters, no such power should exist in respect of the act of failing to renew.  The reason for this, so Mr Kuan argued, is that the dismissal of the application that is a deemed consequence of the act of abandonment is not a dismissal on the merits.  But that is not the situation in respect of the dismissal that is a consequence of a failure to renew.  That dismissal only occurs after there has taken place a determination by a single judge of the merits of the application.

18. Furthermore, Mr Kuan submitted, even if an applicant had failed to file the Form XIII within 14 days on genuinely blameless grounds, he would not be left without a remedy.  An applicant could either appeal to the Court of Final Appeal or refer the case to the Chief Executive under section 83P of the Ordinance.

Discussion of the preliminary point on jurisdiction

19. Mr Kuan is right in saying that the Ordinance does not contain any provision granting power to the Court of Appeal to extend the time for renewal of a leave application. That is hardly surprising as the Ordinance does not concern itself with the renewal procedure.  It simply says in section 83Y(3):

“If the single judge refuses an application on the part of an appellant or applicant to exercise in his favour any of the powers above specified[1], the appellant or applicant shall be entitled to have the application determined by the Court of Appeal.”

It is left to the Criminal Appeal Rules to regulate the practice and procedure of renewed applications to the Court of Appeal.

20. There is, therefore, nothing unusual in the fact that the Ordinance does not contain a power to extend the time for renewal.  Indeed it does not even contain a provision stating the time in which renewal is to be made; that is also left to the rules.

21. Given that the renewal procedure is one of many areas of the practice and procedure of criminal appeals that is regulated by the rules, is there any justification for saying that rule 74 does not apply to the renewal procedure?  We do not think there is.  There is nothing unusual in rule 74. Slip rules of its kind are frequently found in rules that regulate practice and procedure.  Their purpose is to provide some flexibility to the operation of the rules and to ensure that injustice is not created by a too strict application of them.  Given this context of rule 74 and the important role that it performs, we would start from the position that a purposive construction of the rule requires us to give it a broad interpretation in order to ensure that it could properly perform its role.

22. Mr Kuan submits that the words “the further prosecution of his appeal” that are contained in rule 74 and the words “shall be final” in rule 42(3) support the proposition that once an application has not been renewed and the single judge’s decision refusing leave has become final, then there is no appeal in existence which can be further prosecuted.  If there is no appeal in existence which can be further prosecuted then rule 74 is not engaged.  His proposition is dependant on giving a literal meaning to the words employed in rule 42 that the single judge’s refusal of leave “shall be final”.

23. He seeks support for his argument in rule 39 which states that when a notice of abandonment of appeal is received by the Registrar “the appeal shall be deemed to have been dismissed by the Court of Appeal” and argues they are analogous situations.  However, we do not see any similarity between rules 39 and 42. 

24. First, rule 39 requires a positive act by an appellant in compliance with the rules.  Rule 74 could have no application to rule 39 for the simple reason that for rule 74 to have any application there must first be a non-compliance with the rules.  Secondly, rule 39 deems the appeal to have been dismissed by the Court of Appeal; not by a single judge, but by the Court of Appeal itself.  That is why the Court of Appeal in its decisions on this area of the law has said that once an appellant has abandoned his appeal there is no longer any appeal before it.  But that is not the position with rule 42. Rule 42 makes no mention of the Court of Appeal and simply has the effect of making what might otherwise be only a provisional decision, in the sense that the same issue, namely whether leave to appeal should be granted can only be finally determined by the Court of Appeal, into a final decision on this issue.  But it is still only a decision of the single judge and, it must be remembered, the single judge does not even have to be a Justice of Appeal.  Importantly, it does not deem it to be a decision of the Court of Appeal.

25. Since the hearing, Mr Kuan has written to the court fairly, and in accordance with his duty to the court, drawing our attention to a decision of the Appeal Committee of the Court of Final Appeal which is against him and which supports the view we have expressed in the foregoing paragraph.  The decision is Fung Yat Sai v HKSAR FAMC 42 of 2003, unreported, 19 November 2003.  In this case, the applicant had been refused leave to appeal by a single judge and did not seek to renew his application.  However, eight months later he applied to the Court of Appeal for a certificate that the decision in his refused application for leave to appeal involved a point of law of great and general importance so that he could appeal to the Court of Final Appeal.  The Court of Appeal held that once the single judge’s refusal of leave became final by operation of rule 42(3), the Court of Appeal did not have the power to consider the application again and the applicant had to appeal directly to the Court of Final Appeal.  No reference was made by the Court of Appeal to rule 74.

26. The Appeal Committee said that the Court of Appeal was wrong in thinking that the applicant could appeal to the Court of Final Appeal.  The right to appeal to the Court of Final Appeal is contained in section 31 of the Hong Kong Court of Final Appeal Ordinance, Cap 484 and it provides that an appeal shall lie to the Court of Final Appeal in a criminal cause or matter from:

“(a) any final decision of the Court of Appeal;

(b) any final decision of the Court of First Instance (not being a verdict or finding of a jury) from which no appeal lies to the Court of Appeal.”

27. The Appeal Committee said at paragraphs 6 and 7 of its determination:

“6. With respect, we cannot agree with the Court of Appeal on its interpretation of s.31 of the Hong Kong Court of Final Appeal Ordinance. In our view, that section simply does not apply in this case. The judgment of the Chief Judge was neither a final decision of the Court of Appeal nor a final decision of the Court of First Instance and from which no appeal lies to the Court of Appeal. …

7. The proper procedure, in our view, is for the applicant to apply to Court of Appeal to renew his application for leave of appeal to that court.  Without a decision of that court, the applicant cannot apply for leave to appeal to the Court of Final Appeal, whether on the point of law ground or substantial and grave injustice ground.”

28. The Appeal Committee did not refer to rule 74 and made no observation on the source of the Court of Appeal’s power to extend the time for renewal.  However, we are satisfied it must be rule 74.

29. We were not persuaded, therefore, that we lacked the power to grant the applicant the extension he needs.  We were satisfied that we had power under rule 74 to waive the applicant’s non-compliance with the 14 day time limit contained in rule 42 and the question then arose of whether we should exercise that power favourably to the applicant. 

The applicant’s explanation for the delay in renewing

30. In an affirmation that the applicant filed in support of his Form XIII, the applicant stated that he “don’t no 14 days of the date shown in Part I”, which we take to mean that he did not know he needed to file the Form XIII within 14 days of the refusal of leave.  He repeated this claim at the hearing.

Discussion of whether to waive non-compliance with the rules

31. Mr Kuan says that the applicant’s explanation is not one that satisfies the requirement of rule 74 that the non-compliance with the rule is shown not to be wilful.  We do not agree.  The applicant is a foreigner who appears to be barely literate in English and who claims he suffered from not knowing the requirements of the form and the rules.  We note that the applicant was only 11 days out of time in respect of a period of time that covered Christmas and New Year.  In these circumstances we are satisfied that the applicant has brought himself within rule 74 and should be allowed to renew his application.  We grant him the extension of time he needs in order to do so.

The merits of the renewed application 

32. In his Form XI the applicant simply complained that the sentence imposed on him is excessive.  At the hearing of the single judge leave application the applicant also complained that he had been injured in the struggle and had had to seek medical treatment whilst in prison.  He also informed the judge that his father had recently passed away in Pakistan and that he would like to return there.

33. In both his Form XIII and the affirmation he filed in support he did not mention anything relevant to the merits of his renewed application for leave to appeal his sentence.  However, at the hearing of his renewed application he raised a number of complaints all of which related to his personal and family circumstances in respect of which he simply prayed-in-aid the court’s power to extend mercy and reduce an otherwise proper sentence.

34. The applicant complained that his right leg is severely injured and not properly functioning.  He said he is not receiving proper medical treatment for it yet he is still required to work.  He also said he was subjected to teasing by other inmates and this made his sentence more difficult to endure.  Finally he referred to the fact that his brother had also been sentenced to a period of imprisonment with the consequence that neither had anyone to visit them.

35. Mr Kuan submitted that the renewed application is without merit.  He submitted that the judge’s starting point is in line with long established Court of Appeal sentencing guidelines and the judge was correct in determining that the struggle, which stemmed from the applicant’s attempt to prevent the wife from calling the police, was an aggravating factor.  The enhancement of 3 months for this aggravating factor, he said, cannot be considered excessive.

Discussion of the merits of the renewed application

36. There is in fact no complaint by the applicant in respect of his sentence other than that he is unhappy with its length and clearly is not enjoying his incarceration.  As was made apparent to him in the detailed and considered judgment of Macrae JA there is nothing excessive in either the starting point adopted by the judge or in the enhancement of that starting point by three months to allow for the aggravating factor.  With respect the judge was perfectly correct in regarding the applicant’s violence as an aggravating factor and the applicant should feel fortunate that the starting point was enhanced by only three months.  The use of violence on the occupants of domestic premises in the course of a burglary is always to be regarded as a serious aggravating factor.

37. The personal and family matters raised by the applicant are not such as to cause this court to interfere with what is otherwise a perfectly proper sentence.  All of the applicant’s complaints are wholly without merit.

Conclusion

38. For these reasons we refused the renewed application for leave to appeal.

Loss of time

39. Having found that there was no merit whatsoever in any of the applicant’s complaints, we invited the applicant to address us on why a loss of time order should not be made against him.  The applicant made no response to our invitation.  However, in his affirmation attached to the Form XIII he stated that he understood a “loss of time” direction might be given if the court came to the conclusion that there was no justification for the renewal.

40. Given that the applicant had enjoyed the benefit of a detailed and considered judgment of a single judge on the leave application, through which he was informed that there was no merit in his application, and that he was made aware of the power vested in this court to order loss of time and of the risk that, should he renew, this power might be exercised against him, we were satisfied that this was an appropriate case for us to exercise the section 83W(1) power.  Indeed, it is an excellent example of the need for this court to exercise its power to order ‘loss of time’.

41. As there was nothing new in the applicant’s complaints that went to the merits of his application and as there was such a stark lack of merit in all of his complaints this application was an egregious waste of the judiciary’s resources and a wholly unnecessary impediment to the expeditious hearing of cases, some of which might be meritorious cases.  His wasteful employment of court time was, in a very real sense, a source of injustice to others.  For these reasons we ordered that, under section 83W(1) of the Ordinance, two months of the time during which the applicant has been in custody pending the determination of his appeal shall not be reckoned as part of the term of the sentence to which he is for the time being subject.