HKSAR v. HASHIMI HABIB HALIM

HCMA 847/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 847 OF 2010

(ON APPEAL FROM TMCC 2473 OF 2010)

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BETWEEN

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REASONS FOR DECISION

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Background

1.  The appellant was charged with an offence of assault occasioning actual bodily harm, contrary to section 39 of the Offences Against the Person Ordinance, Cap 212, Laws of Hong Kong.  The particulars of the offence alleged that the appellant “on the 27^th day of July, 2010, at DD125, Lot 1550, San Uk Tsuen, Tin Ha Road, Tin Shui Wai, New Territories, in Hong Kong, did assault SHAHZAD QAISER, thereby occasioning actual bodily harm to the said SHAHZAD QAISER”.

2.  The appellant pleaded not guilty.  On 9 November 2010, the appellant was convicted of the offence and was sentenced to five months imprisonment.

3.  By a notice dated 11 November 2010, the appellant appealed against both the conviction and the sentence.

4.  The appellant was granted bail pending appeal on 2 December 2010.  His bail was revoked on 18 May 2011.  Despite a succession of further applications for bail pending appeal, bail was not granted to the appellant.

5.  The appeal was originally set down for hearing on 14 July 2011.  The hearing was vacated upon the appellant’s application on 12 May 2011 and re‑fixed to 2 August 2011.  The appellant wrote to the court on 23 June 2011 asking, among other things, for an urgent hearing of the appeal against conviction.  Arrangement was then made to vacate the hearing scheduled on 2 August 2011 and the hearing was brought forward to 15 July 2011.

6.  On 15 July 2011, the appellant indicated to the presiding judge that he had applied for the Free Legal Aid Services run by the Bar Association.  The appellant informed the court that his application for legal aid had earlier been refused.  The learned judge then adjourned the hearing to 10 August 2011.

7.  On 10 August 2011, the appellant informed the court that his application for the said Free Legal Aid Service was refused.  He applied to adjourn the hearing sine die and also asked to have copies of the photographs showing the injuries sustained by the victim to be made available to him.  The learned judge ordered the case “to be re‑fixed at the earliest opportunity” and among other things, ordered copies of the said photographs to be made available to the appellant.  The case was then re‑fixed to 2 September 2011.

8.  On the next hearing on 2 September 2011, the appellant indicated to the presiding judge that he was feeling drowsy on account of having taken certain medication.  By that stage the appellant had already served his sentence.  The judge ordered that the case be “adjourned generally”, and that it “can be listed on notice to the list”.

9.  The case was then re‑fixed to 20 December 2011.  This hearing date was vacated upon an application by the appellant dated 2 December 2011 on the basis that he had lodged a complaint against the very judge scheduled to hear the appeal.  The said judge granted the application and ordered that the case be “adjourned to a date to be fixed”.

10.  The next hearing date fixed was 25 May 2012.

11.  When the appellant appeared before me on 25 May 2012, he indicated that he was not ready to proceed with the appeal as he lacked the resources to prepare the papers.

12.  The appellant made the following applications before me:

(1) adjourn the appeal hearing sine die;

(2) direct the Director of Legal Aid to grant legal aid to him; and

(3) grant him the costs of the hearing before me.

I refused all his application and I indicated that I would hand down my reasons later.

13.  I ordered that the case be adjourned to a date to be fixed, but not before a period of six months from 25 June 2012 has elapsed.  The appellant was also ordered to file written grounds of appeal at least 14 days prior to the next hearing date.

14.  I now give my reasons for my decisions.

Prosecution case

15.  The prosecution case, in a nutshell, was that the appellant had an argument with Shadzad Quaiser during which the appellant pinned Shadzad Quaiser against the wall, pointed a knife at the latter’s neck and nicked him.  The appellant also scratched the right forearm of Shadzad Quaiser, causing him injuries. 

Defence case

16.  The appellant’s case was that Shadzad Quaiser had made rude remarks on the appellant’s stomach and the marking on his arm.  When he told Shadzad Quaiser to stop, Shadzad Quaiser used foul language to scold him.  The appellant grabbed Shadzad Quaiser’s shirt to make him stop.  The appellant did not use any knife to point at Shadzad Quaiser and he did not assault Shadzad Quaiser. The appellant’s case was that Shadzad Quaiser framed him up.  The reason for framing him up was that the appellant had disputes with a man named Rashid Khan and Shadzad Quaiser helped Rashid Khan to get the appellant in trouble.

Grounds of appeal

17.  Apart from the general standard grounds of appeal pre‑printed on the Notice of appeal, the appellant did not give any detailed grounds of appeal.

My consideration

18.  Bearing in mind that the case occurred in July 2010, almost two years earlier, I was concerned that no proper grounds of appeal was ever filed.  The appellant informed me that he did not have the resources to prepare his papers.  The appellant was of the view that since he had already served his sentence, he could not (and should not) be “forced” to proceed with the appeal, he should be allowed to have the case adjourned sine die.  The appellant indicated to me that the case had been adjourned sine die previously and he did not understand why the case could have been re‑listed without his request.

19.  In the present appeal, it was the appellant who has brought the appeal against conviction and sentence.  No one forces him to appeal.  Having lodged an appeal, the appellant has the duty to prosecute his appeal in a reasonably speedy fashion.  Whilst I understand the delay occasioned by the appellant’s application for legal assistance and his physical health condition, this case has been adjourned on numerous occasions and it is undesirable for an appeal to be hanging in limbo.

20.  In my view, there is no such thing as adjourning the matter sine die in the case of a criminal appeal — as in the case of a civil matter.  In any event, contrary to what the appellant has alleged, what the court had previously ordered was for the case to be adjourned either generally or to another date to be fixed.  Clearly the court envisages a re-fixing of the case and not adjourning the matter sine die.

21.  Whether a case should be adjourned would depend on whether there are grounds for the adjournment.  On the previous occasions, the reasons for adjournment concerned the appellant’s desire to have free legal representation; the appellant’s physical health condition; and the appellant having lodged a complaint against a certain judge.  Before me, the reason given was that the appellant did not have the resources to prepare his papers.

22.  The appellant is not the only person who has appeared before a court on appeal acting in person.  Many persons appear in person before the court.  Whilst I sympathise with the appellant’s position, the fact remains that if he wants to pursue his appeal against conviction, he must get his act in order and cannot simply say that he has no resources and defer the hearing indefinitely.  I therefore allowed the appellant six months’ time to prepare his appeal and re­fix the hearing date to a date after this initial six months.  I also ordered the appellant to file his written grounds of appeal at least 14 days before the next hearing date so that both the court and the respondent can prepare for the hearing.

23.  I have warned the appellant that it was his duty to prosecute the appeal.  Should he still fail to properly prosecute his appeal and to provide his grounds of appeal properly in time before the next hearing, he runs the risk of the court dismissing his appeal.

24.  As to the appellant’s application in relation to legal aid, it should be noted that the appellant’s application for legal aid was refused before he sought assistance from the Free Legal Aid Scheme run by the Bar Association.  Having read the case file, it is clear that the case turns on the credibility of Shadzad Quaiser and the appellant, in other words, the fact‑finding of the magistrate.  This appeal does not turn on any legal principles.  It was my view that this was not a proper case for me to direct the Director of Legal Aid to provide legal service to the appellant.

25.  As to the application for costs, there was absolutely no basis for me to award costs to the appellant for the hearing.  The hearing was adjourned purely because the appellant was not ready to proceed.  It was not adjourned because of any fault on the part of the respondent, or unavailability of the court.

26.  Although I have expressed certain views in relation to this case when I refused the appellant’s application to direct the Director of Legal Aid to grant him legal assistance, it should not be taken as any views expressed on the merits of his appeal.  Without knowing the grounds of appeal, it is not possible to consider the merits of the appeal.