HKSAR v. ZUNINI DE LA CRUZ JORGE DANIEL

CACC 104/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 104 OF 2010

(ON APPEAL FROM HCCC NO. 315 OF 2009)

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REASONS FOR JUDGMENT

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Hon Macrae JA (giving the Reasons for Judgment of the Court):

1.  On 19 March 2010, the applicant was unanimously convicted before Line J and a jury of a single count of Trafficking in a dangerous drug, namely 394.43 grammes of a powder containing 280.72 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On the same day, the applicant was sentenced to 14 years’ imprisonment. He applied for leave to appeal against conviction and to treat an earlier abandonment of his appeal, which he had made in October 2010, as a nullity.

2.  On 11 May 2016, we granted the applicant’s application to treat the abandonment of his appeal against conviction as a nullity and, having heard his application for leave to appeal, we refused leave saying that we would hand down the reasons for our decision in due course.  These are our reasons.

The procedural history of the application

3.  On 24 March 2010, the applicant filed a Notice of application for leave to appeal against his conviction (hereinafter referred to as his “Form XI application”).

4.  Thereafter, the applicant, by way of a Notice of Abandonment (“Form VII”) dated 20 October 2010, sought to abandon his Form XI application, which was accordingly marked as dismissed on the same day.

5.  Almost 5 years later, the applicant, by way of an affirmation dated 13 July 2015, sought to reinstate his Form XI application by treating the abandonment of his appeal as a nullity.

6.  On 20 July 2015, the Master directed that the applicant’s application for leave to treat his notice of abandonment as a nullity be heard together with his application for leave to appeal against conviction.  The applicant was also reminded of his right to apply to the Legal Aid Department for legal aid assistance.

7.  The applicant then changed his position.  On 4 November 2015, he submitted a handwritten letter (dated 29 October 2015) to the Court abandoning his (renewed) application for leave to appeal against conviction, stating that he was unable to obtain legal assistance.[1]  At a mention hearing before Cheung CJHC on 12 November 2015, the applicant further expressed his intention to abandon all further proceedings in respect of his appeal.  The applicant was duly advised to file another Form VII in order to serve that end.

8.  It then transpired that no (further) Form VII was filed.  At a further mention hearing before Cheung CJHC on 3 March 2016, the applicant reverted back to his earlier position, stating that he would pursue his application to treat his abandonment as a nullity and his application for leave to appeal against conviction.

The prosecution case

9.  On 23 April 2009, a parcel was sent to a person named Guillermo Martine Bizotto at an address at 14/F, Kim Tak Building, No’s 328-342, Nathan Road, Kowloon (“the address”).  The parcel was intercepted by Customs & Excise Officers (“C&E officers”) upon arrival in Hong Kong and found to contain two plastic packets containing respectively 199.87 grammes of a powder containing 143.78 grammes of cocaine and 194.56 grammes of a powder containing 136.94 grammes of cocaine.  The total value of the drugs as at April 2009 was HK$298,978.

10.  In the afternoon of 26 April 2009, C&E Officers mounted a controlled delivery operation to the address on the parcel, posing as staff of the courier company.  When they arrived at the address (at 14:40 hours), no one answered the door.  Later, the C&E officers returned (at 15:20 hours) to the lift lobby of the building in question, where the applicant appeared and produced a purported copy of his passport in order to claim the parcel.  The copy of the passport showed the applicant’s photograph but bore the name of Guillermo Martine Bizotto as the holder of the passport.[2]

11.  Following questions from one of the C&E Officers as to whether the applicant was Mr Bizotto and whether he wanted to collect the parcel, to both of which enquiries the applicant nodded his head, and following a check by the officer and the applicant of the numbers on the parcel and the receipt, the applicant signed the receipt and wrote out in full his purported name, Guillermo Martine Bizotto, to acknowledge delivery.[3]

12.  PW1 then passed the parcel to the applicant, who received it with his hand.  The officer immediately revealed his identity and the applicant was duly arrested.  Upon search, the applicant was found to be in possession of four mobile telephones, 10 SIM cards and some documents in his real name.

13.  A statement from the husband of the owner of the unit at 14/F, Kim Tak Building was read out by the prosecution at trial under the provisions of section 65B of the Criminal Procedure Ordinance, Cap 221, stating that the address on the parcel had been sublet to a man called Jose Antonio Holoveture from 28 January 2009 for one year.  It was further an admitted fact agreed between the parties that the applicant had travelled into and out of Hong Kong using his Uruguayan passport on 17 occasions between 25 April 2007 and 25 April 2009[4], with his last arrival via the Lo Wu Checkpoint being on 13 March 2009.

14.  It was the prosecution case that by presenting a copy of a false document, namely a passport with a correct photograph but a false name, and then signing the receipt for the parcel in that false name, the applicant must have known that dangerous drugs were contained in the parcel.  Furthermore, the prosecution did not accept the applicant’s explanation as to why he would be receiving the parcel at an address at which he did not reside, using a document in a false name.

The defence case

15.  The applicant elected to testify but called no defence witnesses.  He testified that he came to know a person called Jose in Uruguay about five years before and had met him on about eight to ten occasions since.  At around noon on the day in question, Jose had given the applicant a call, asking him to do a favour for him.  At that time, the applicant did not know what the favour was, save that it was urgent and that he was to receive something.  He said he agreed to help because he had nothing much to do and he did not expect any reward.

16.  The applicant then met Jose at Jordan MTR station and the two of them walked together to Kim Tak Building.  Outside the Kim Tak Building, Jose asked the applicant for his passport so that he could make a photocopy which could be presented to the courier company staff, who would be delivering a parcel to 14/F.  The applicant was then asked to wait in the building, collect the parcel and then leave it at the address on 14/F, together with the keys to the premises.

17.  Whilst waiting for the parcel to be delivered, the applicant wanted to go to the toilet, so he called Jose asking if he could use the toilet in the flat on 14/F.  It was only when he was emerging from the bathroom on 14/F that he realised for the first time that the name on the photocopy of his passport had been changed to Bizotto.  Accordingly, he telephoned Jose to ask why, but Jose assured him that it was not a problem since he had already made arrangements with the delivery company.

18.  When the “courier company staff” in due course arrived in the lift lobby, the applicant showed the copy of his passport to them.  They spoke to him but he did not understand what they were saying.  He therefore called Jose for him to explain the situation and handed the telephone to what he believed were the courier company staff, after which he heard the staff member say “Okay. Okay”. He then took back the telephone and spoke again to Jose, who told him to “just sign the name Bizotto on the papers.”

19.  The applicant said the “courier company staff” pointed to the name on the copy of the passport and then to the space where he should sign on the receipt.  No one mentioned the name Bizotto. The applicant testified that he had merely acted upon Jose’s instructions in collecting the parcel in question on the latter’s behalf and knew nothing about the drugs inside; neither did he, at any time, suspect that the parcel contained any dangerous drugs.  He received no reward for what he was asked to do.

The summing-up

20.  At the outset of his summing-up, the judge identified what he described as “the central issue” for the jury to decide, which was

“whether or not (the applicant) received the parcel knowing that it contained dangerous drugs”.[5]

Having reviewed the prosecution evidence, the judge then directed the jury as follows:

“…You must always remember that even if you were to decide you did not believe [the defendant], that would not relieve the prosecution of its burden of satisfying you by evidence so that you are sure that the defendant is guilty of the charge he faces. If you think the defendant may be telling you the truth, that would mean that you necessarily had a doubt about the truth of the prosecution evidence, and again, in those circumstances, it would be your duty to return a verdict of not guilty in favour of the defendant”.[6]

21.  The judge then summarised the defence evidence and in so doing, he specifically recounted the applicant’s explanation as to why he had used a false name and a false document to claim the parcel, and the applicant’s version of what had taken placed in the lift lobby of Kim Tak Building.[7]

22.  After the jury had retired, they posed several questions, the material one, so far as the applicant’s grounds of appeal are concerned, being as follows:

“If there is no solid evidence to show conclusively that the defendant was aware that the parcel contained dangerous drugs, is it still possible to arrive at a guilty verdict based on the evidence provided?”[8]

23.  To which question, the judge gave the following directions, which it is worth reciting in full[9]:

“Well, first of all, it depends what is meant by the word “solid”, and as to the latter part of the question, it is up to you whether you arrive at a verdict of guilty or not guilty, because it depends on your finding of facts.

My advice to you is this:  stick to the words used in my summing-up, and ask yourself never mind does it attract the adjectives “solid” or “conclusive”.  Those aren’t the words I used to you, do you remember?  What I posed to you is the burden and standard of proof, and the question is:  does the evidence make me sure?  That is the test.  That is what I directed you in my summing-up, and if you stick to that, then you will be sticking to the directions that I gave you.

No one can open a man’s mind and see what the state of his mind is. Knowledge is a state of mind. You can’t get direct evidence of it. In order to work out what is in someone’s mind, you’ve got to look at the surrounding circumstances and all of the evidence about it, and jurors can work out a man’s state of mind from all of the circumstances.

Let me seek to help you in this area by just reminding you perhaps of the shape of the case. It is up to you how you see it. If you disagree with anything where I touch on the facts, as I have told you, you follow your own judgment. But here, the prosecution say you can be sure that he had the knowledge that there were drugs in the parcel because he deliberately used a false name and a false document to claim the parcel with the drugs in it.

The defendant has advanced to you an explanation as to why he did that. So you might consider a way forward would be, first of all, decide this. Look the prosecution evidence unexplained. Put aside his explanation for a minute and say, “Let’s look at that. Can that make me sure of guilt?” And the prosecution say it can, because the use of the false name and the false document, they say, show you that he knew something criminal was going on, and the criminal thing going on, they will say, the drugs; otherwise, why not use your own identity? That is their argument.

Now, the defence come along and go, “That doesn’t apply here, because I’ve got an explanation”, and his explanation was, you’ll remember, that Jose had told him that there was no problem in using the name, and he’d fixed it up with the courier company, and that’s why he did what he did. That is his explanation for it.

If you think his explanation might be true, obviously you couldn’t be sure. Therefore, the verdict would be not guilty. If you rejected his explanation, you’d go back and look at the prosecution evidence and go, “Does that make me sure or not?” That is the way you can approach the case and apply the burden and standard of proof; though I do stress the questions of fact for you to decide.

But I hope giving you that framework, which emphasises the burden and standard of proof, may be of help to you.”

Application for leave to treat the notice of abandonment as a nullity

24.  As noted earlier, the applicant filed an affirmation dated 13 July 2015, applying for leave to treat his Notice of Abandonment of the Form XI application as a nullity.  In support of his application, the applicant states that:

“…on 9^th September 2010, I wrote to Legal Aid Department to abandon my appeal against conviction. Prior to this letter, I was informed by the Security Bureau that they were unable to process my application to be transferred to Uruguay to serve out my sentence as the appeal was still pending. At the time, my main focus was on being able to return home as soon as possible so I chose to abandon the appeal against conviction.

It has been almost 5 years since the transfer application has been made and yet no progress has been made in this regard. I now humbly request that my appeal against conviction under Criminal Appeal Case No CACC 104/2010 be restored.”

25.  On 5 April 2016, the applicant further submitted a letter dated 30 March 2016, attaching (i) his homemade “Grounds of Appeal and Reasons for Delay” and (ii) a letter from the Secretary for Security dated 9 August 2010.  The reasons for delay set out in (i) essentially repeated those he had already given in his affirmation dated 13 July 2015.  In respect of (ii), the contents of the letter from the Secretary for Security were as follows:

“I refer to your application dated 14 June 2010 for transfer to Uruguay to serve the remainder of your sentence.

Given that the criminal proceedings relating to you in respect of the conduct which gave rise to the sentence imposed are still pending, we are unable to proceed any further with your application at this stage pursuant to Section 4(2) of the Transfer of Sentenced Persons Ordinance, Cap 513, Laws of Hong Kong.

Please inform us to resume your application when your appeal against the conviction has been concluded and no further criminal proceedings are pending in Hong Kong.”

Application for leave to appeal against conviction

26.  In a note attached to his Form XI application dated 24 March 2010, the applicant did not identify any specific ground of appeal, merely asserting that he had no knowledge about the content of the “package”.

27.  The applicant subsequently filed a document, which was dated 16 March 2016 and written in Spanish.  This document was filed together with its purported English version.  The English version essentially contained the following grounds of appeal[10]:

(a)  The movement record in respect of the applicant in 2007 was false, as he only first obtained his passport in 2008 [Ground 1];

(b)  The judge unfairly discredited the applicant by highlighting that the latter did not know the surname of Jose [Ground 2];

(c)  The judge ignored the applicant’s evidence that the applicant had given Jose a telephone call in the presence of the C&E Officers [Ground 3];

(d)  The judge failed to explain clearly the defence case that the applicant was merely copying the name from the passport copy to the receipt [Ground 4];

(e)  The applicant did not have physical possession of the drugs in question [Ground 5]; and

(f)  The summing-up was unfair [Ground 6];

28.  As noted above, the applicant had also attached to his letter of 30 March 2016 some homemade grounds of appeal.  Whilst some of the grounds were a repeat of what he had earlier stated, a further ground of appeal was articulated, namely, that the judge wrongly failed to direct the jury in his summing-up that the use of a false name did not equate to knowledge that there were dangerous drugs inside the parcel [Ground 7].

The respondent’s submissions (re: application for leave to treat the notice of abandonment as a nullity)

29.  Mr Eddie Sean, on behalf of the respondent, has helpfully drawn our attention to HKSAR v Sarkuna (unrep., CACC 239/2002, 18 January 2011).[11]  He points out that the reasons given and accepted for the applicant abandoning his application for leave to appeal in that particular case appear to be very similar to that given by the applicant in the present case.

30.  Mr Sean accepts that the applicant seems to have been motivated to abandon his Form XI application for the reasons he has averred and that he may not have properly appreciated the effect of what he was doing.  As such, the respondent does not oppose his application to treat the abandonment as a nullity.

The respondent’s submissions (re: application for leave to appeal against conviction)

31.  Mr Sean contends that the summing-up was fair and balanced and dealt with all relevant issues and points of law.  In respect of the grounds of appeal identified at para 27 (supra), he submits:

(a)  The movement records were an admitted fact properly confirmed by the applicant [Ground 1];

(b)  The judge did not especially highlight the fact that the applicant did not know Jose’s surname. In any event, he was entitled to comment on the evidence, provided that he told the jury that they were free to reject his comments, which he did repeatedly [Ground 2];

(c)  The judge did not ignore the evidence of the telephone call during the applicant’s meeting with C&E Officers posing as courier company staff. He reminded the jury of the prosecution’s version of what happened[12], as well as the applicant’s own evidence of the telephone call[13] [Ground 3];

(d)  The judge did remind the jury that the applicant’s case was that he signed the name “Bizotto” because that is what Jose had told him to do over the telephone[14]; and the C&E Officers simply pointed at the name on the copy of the passport and then pointed to the space on the receipt where he should sign[15] [Ground 4];

(e)  The evidence was that the applicant did have physical possession of the parcel containing the drugs, which was a question of fact about which there was no dispute[16] [Ground 5];

(f)  The summing-up was fair and balanced [Ground 6]; and

(g)  The judge did not equate the use of a false document with knowledge of the presence of dangerous drugs in the passport, but he was right to remind the jury that it was one of the obvious circumstances upon which the prosecution relied to show that the applicant must have known that something criminal concerning dangerous drugs was going on, “otherwise, why not use your own identity? That is (the prosecution’s) argument”[17] [Ground 7].

32.  Mr Sean’s original submissions in response to the applicant’s grounds of appeal, however, have recently been rather overtaken by events.  By his most recent letter to the Court dated 2 May 2016, the applicant has effectively abandoned all of his previous grounds of appeal and essentially argues that the judge should never have allowed the case to proceed beyond a case to answer stage because any conviction based on such a paucity of evidence available must be unsafe and unsatisfactory. We have nevertheless left the grounds as originally articulated and answered, since some of the matters to which the applicant refers are relevant to, albeit subsumed by, this latest ground of appeal.  The applicant argues that the jury’s question (at para 22 supra) reinforces the view that they must have thought there was no “solid evidence” of the applicant’s guilt, thus adding weight to the proposition that this was a case that should not have been left to the jury.

Discussion

33.  Mr Sean does not oppose the application to treat the earlier abandonment of the applicant’s application for leave to appeal against conviction as a nullity, particularly since the document by which the applicant purported to abandon his application for leave to appeal preceded the judgment of the Court in Sarkuna and suffers from the same deficiency which concerned the Court in that case.  Furthermore, Mr Sean accepts, in the circumstances, that the applicant may not have fully understood the ramifications of abandoning his appeal for the reasons he gave, and that he would effectively be precluded from reopening his appeal, which would stand dismissed.  However, we desire to say that simply because an applicant is motivated to abandon his appeal because of extraneous considerations such as his hope of an early return by way of prisoner exchange to his country of origin in order to serve out his sentence, which a continuation of his appeal proceedings might delay or jeopardise, is not a good reason for permitting him to treat that abandonment as a nullity.  Appellate courts will assume, unless there is cogent evidence before it to suggest otherwise, that the applicant knew full well what he was doing when he abandoned his appeal against conviction and that his abandonment was the result of a deliberate and informed decision.  However, we must repeat the Court’s concerns in Sarkuna, at para 11(4), that:

“…where a person signs such a notice which is not in his language, steps should be taken to ensure that the notice of abandonment – which is, after all, brief – be translated to the applicant so that he understands it and that the fact of that translation be certified.”

34.  Given that a good number of those convicted of crimes in this jurisdiction may come from outside Hong Kong and are not fluent in either English or Chinese, and given the importance and finality of the Notice of Abandonment in the appeal process, it would be sensible for arrangements to be made for the Notice of Abandonment Form to be translated into other languages, and to be ready and available for use at Correctional Institutions to be distributed to such persons in their native language.

35.  There is an important public interest in the finality of criminal litigation, which the sudden resurrection of an appeal 5 years after being abandoned undermines.  If, for example, the applicant were to succeed in this appeal, one of the eventualities could be the ordering of a retrial, which would require the witnesses to give evidence all over again more than 6 years after the events which gave rise to the applicant’s arrest. That is not fair to witnesses, including defendants, and it is in no one’s interest that criminal appeals should be allowed to drag on according to an applicant’s private agenda.

36.  Nevertheless, given the respondent’s position and Mr Sean’s acceptance that the applicant may well have not understood the full implications of his abandonment notice, which notice is no longer in use, we are prepared to treat the applicant’s abandonment as a nullity.  Accordingly, we turn to the merits of his appeal.

37.  It cannot be contended, and we say so at the outset of our consideration, that the judge appeared to be in any way biased against the applicant’s case.  This was a short case lasting 3 days from arraignment to verdict.  As was to be expected in such circumstances, the issue for the jury was a simple one, namely, could they be sure that at the time the applicant received the parcel, he knew it contained dangerous drugs?  The judge identified that issue as “the central issue” at the outset of his summing-up. The ensuing directions of law and the judge’s summary of the evidence were directed towards that central issue.

38.  When the jury asked the question to which we have referred (para 22 supra), the judge gave a helpful instruction to them as to how they might approach that issue, culminating with his clear direction that if they thought the applicant’s explanation might be true, then they could not be sure of guilt and they must acquit.  He went on to reiterate that even if they rejected the applicant’s explanation, the jury would still have to be sure on the prosecution evidence alone.  This was a fair direction and entirely consistent with the standard directions on the burden and standard of proof and their effect.  We cannot detect any hint of bias on the part of the judge.

39.  It is true that the judge did say, again at the outset of his summing-up when summarising the respective positions of the parties, that

“…the prosecution say that on those facts you can be sure that the defendant is guilty, because they say an innocent man would not pick up a parcel using a false name supported by a false document, and they say his explanation is unbelievable”.[18]

That is indeed what the prosecution were contending and the judge was perfectly entitled to summarise their position at the outset, just as he was perfectly entitled immediately thereafter to contrast the prosecution’s position with the applicant’s explanation

“that he was doing a friend a favour and that he had no knowledge of the drugs, and he said he was using a false name as his friend had told him to do so.”[19]

40.  The judge did also comment, during his review of the applicant’s cross-examination, that

“The prosecutor was naturally concerned to have the defendant acknowledge that he had deliberately and knowingly passed himself off as being someone else in order to receive the parcel. It is up to you, but you may think the defendant was reluctant to acknowledge that.”

There is nothing wrong with such a comment. The judge repeatedly reminded the jury, as indeed he made clear again in this very passage, that issues of fact and how they evaluated the evidence were for the jury alone to decide.

41.  The applicant has throughout his previous letters setting out his grounds of complaint suggested that the judge invited the jury to equate the proffering of a false name in a false document to the C&E Officers with guilty knowledge of the contents of the parcel.  We see no evidence that the judge did any such thing.  Indeed, as we have seen, after the jury had asked their question, the judge gave an entirely correct and fair instruction as to how they should approach the issue, inviting them to consider whether the applicant’s explanation might be true, in which case they should find him not guilty and, even if they rejected his explanation, to consider whether on the prosecution evidence alone, which of course included the proffering of a false name in a false document to C&E Officers posing as courier company staff, they could be sure of his guilt.  In our view, the judge was being entirely helpful to the jury in answering their question, as well as completely fair to the applicant.

42.  That brings us to the nub of the applicant’s complaint, which is whether there was any sufficient evidence to be left to the jury by the judge.  Any person, whether a local or a visitor to this territory, who takes possession of a weighty parcel which happens to contain more than a quarter of a kilogramme of cocaine narcotic worth almost HK$300,000, at an address where he does not reside, on behalf of a person whom he has met only a handful of times and whose full name he does not know, using a false document in the form of a copy of his own passport but with his name obviously and materially altered, has at the very least a case to answer.

43.  In this case, the applicant sensibly elected to testify and attempted to answer that case.  He was not believed by the jury. The judge was scrupulous in emphasising to the jury that the facts were for them to decide.  His directions on the law were clear and his recitation of the facts and issues more than adequate in a case that was very short.  Indeed, in our view, his summing-up was a model of conciseness, clarity and balance.

44.  As for the complaint now more hinted at than directly suggested that the applicant was not properly advised by his lawyers before deciding to testify, given the alleged weakness of the prosecution case, we think that the applicant’s decision to testify was the correct one to make in the light of the evidence and circumstances.  If that was as a result of counsel’s advice, it was correct advice and the applicant has no conceivable cause for complaint.

45.  Finally, lest the applicant did not intend, despite what he said in his letter to the Court of 2 May 2016, that his original grounds of appeal, as summarised at para 27 (supra), be subsumed by his latest ground of appeal that there was no case to go before the jury, we should say that we entirely agree with Mr Sean’s response to those grounds, as set out at para 31 (supra).  There is no merit in any of the applicant’s original grounds of appeal.

Conclusion

46.  For the reasons we have given, we were prepared to treat the abandonment of the applicant’s appeal against conviction as a nullity, but refused him leave to appeal against conviction and dismissed the appeal.

[1] The applicant was refused legal aid on 5 October 2015.

[2] Exh P24, a DVD reproducing the CCTV records depicting the lift lobby from about 15:20 hours to 15:40 hours on the day in question, was produced at trial.  This exhibit showed (at 15:26:02) the applicant coming forward holding the document purporting to be a copy of his passport.

[3] It may be noted from the evidence of Customs Officer Au (PW1) that, in the course of these events, the applicant’s mobile telephone had rung and the applicant passed the telephone to PW1 who, on hearing nothing, returned it to the applicant.

[4] Admitted Facts, paragraph 15: Appeal Bundle pp 7-8.

[5] Appeal Bundle, p 9R-S.  The judge reiterated that it was the central issue in the case during the later part of his summing-up at p 13N.

[6] Appeal Bundle, p 17O-S.

[7] For these specific areas of evidence, see Appeal Bundle, pp 18C-19E.

[8] Appeal Bundle, p 25A-B.

[9] Appeal Bundle, pp 25B-26D.

[10] It should be said that some of the applicant’s allegations/challenges are irrelevant to the appeal against conviction.  They include the following, namely:

(i) the prosecution was wrong not to have adequately considered all necessary evidence and not to have produced a copy of the applicant’s own passport;

(ii) the applicant abandoned the appeal because he wished to be returned to his country of origin;

(iii)  the applicant intended to change his plea of not guilty plea to a plea of guilty to a charge of “trafficking” or “attempted trafficking”;

(iv)  the judge failed to request the communication records between the applicant and the owner of the drugs (this point was further emphasised in a letter from the applicant filed on 22 July 2010, which was undated and written in Spanish, albeit filed with an English version); and

(v)   the reasons leading to the applicant’s taking out of the application for leave to treat the notice of abandonment as a nullity.

      We also note that the English version states that the applicant wishes to appeal against his “sentence/conviction”.  However, no submission on sentence was put forward there, nor in any other documents filed by the applicant.

[11]   It was submitted that the applicant in that case filed a Notice of Abandonment on 23 July 2002, claiming that he did so because he was intent on making an application to be transferred to serve his sentence in his own country and was advised that he could not pursue this course whilst court proceedings in Hong Kong were extant; such was accepted by the Court as the reason for the applicant abandoning his appeal.  The Court also had regard to the effect of section 4(2)(d) of the Transfer of Sentenced Person Ordinance, Cap 513, and the fact that the Notice of Abandonment concerned was in English, which was not the applicant’s native language. Accordingly, the Court in that case was prepared to treat the Notice of Abandonment as a nullity.

[12]   Appeal Bundle, p 16P-S.

[13]   Appeal Bundle, pp 18T-19B.

[14]   Appeal Bundle, p 19A-B.

[15]   Appeal Bundle, p 19B-D.

[16]   Appeal Bundle, p 9L-M.

[17]   Appeal Bundle, p 25P-Q.

[18]   Appeal Bundle, p 9M-O.

[19]   Appeal Bundle, p 9P-Q.