FUNG YAT SAI v. HKSAR

FAMC No. 42 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 42 OF 2003 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 496 OF 2002

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D E T E R M I N A T I O N

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Mr Justice Chan PJ:

1. On 10 September 2002, the applicant pleaded guilty to two counts of burglary. He was sentenced by Mr Justice Pang to a total of 40 months imprisonment. In passing sentence, the judge said that since the two offences were committed on different dates, in different places and at different times, the sentences should be consecutive. However, he added that it was not necessary to have regard to the totality principle because the case involved only two offences.

2. On 3 October 2002, the applicant applied for leave to appeal to the Court of Appeal. On 31 December 2002, the application was heard by the Chief Judge sitting as a single judge pursuant to s.83Y of the Criminal Procedure Ordinance, Cap. 221. The applicant was unrepresented. The Chief Judge refused leave, saying that the total sentence of 40 months was not wrong in principle or manifestly excessive. He added that since the two offences were committed in different places and at different times, it was not wrong to pass consecutive sentences.

3. Under s.83Y(3) of the Ordinance and s.42(3) of the Criminal Appeal Rules, the applicant was entitled to renew his application before a Court of Appeal within 14 days. He did not do so.

4. On 11 August 2003 (i.e. 8 months later), through counsel, the applicant applied to the Court of Appeal to certify a point of law of great and general importance for the consideration of the Court of Final Appeal. The point sought to be certified was: where a person was to be sentenced for two similar offences, is it necessary to consider the totality principle?

5. The Court of Appeal held that under s.31 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, since no further application was made to the Court of Appeal, the decision of the Chief Judge was a final decision, that the Court of Appeal had no jurisdiction to re-consider his application; and that the only course open to the applicant was to apply to the Court of Final Appeal for leave to appeal. The Court of Appeal also held that the question sought to be certified had already been dealt with in previous Court of Appeal decisions. On the merits, the Court of Appeal considered that the Chief Judge had already taken into account the totality principle, although that was not made clear in his judgment. The Court of Appeal therefore refused to grant a certificate.

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 no appeal lies to the Court of Appeal. The Court of Appeal was, in our view, also wrong in construing what the Chief Judge said regarding the totality principle. The Chief Judge did not mention that principle, probably because the applicant did not raise the point as he was not legally represented.

7. The proper procedure, in our view, is for the applicant to apply to the 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.

8. Mr Kwok, counsel for the applicant, realising this procedural difficulty, now seeks to withdraw his application. There is no objection from the prosecution and we grant leave to withdraw the present application for leave.

9. This leaves the applicant at liberty to apply to the Court of Appeal out of time to renew his application for leave to appeal to that court. In so saying, we should guard against unduly raising the hopes of the applicant. We can see the point that Mr Justice Pang was wrong to say that since the case involved only two offences, the court need not consider the totality principle. But even so and even if the sentence is on the high side, the Court of Appeal would not interfere unless the sentence is either wrong in principle or manifestly excessive. That would of course be a matter entirely for the Court of Appeal. The applicant is not prejudiced by going back to the Court of Appeal because there would be a higher hurdle for him to overcome if he applies to the Court of Final Appeal than to the Court of Appeal.