HKSAR v. IP WAI HO, MICKY

CACC 218/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 218 OF 2008

(ON APPEAL FROM HCCC NO. 304 OF 2007)

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REASONS FOR JUDGMENT

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Hon Kwan JA (giving the reasons for judgment of the Court):

Introduction

1.  This is an application to treat the abandonment for leave to appeal against sentence as a nullity.  The applicant, who was the 1^st defendant at trial, was charged with two counts of trafficking in dangerous drugs on 23 May 2007.  The 1^st charge related to 67.31 gm of cocaine found in a shoulder bag he was carrying, with a street value of $77,000.  The 2^nd charge related to a quantity of four kinds of dangerous drugs found in a flat to which the applicant had the keys.  They were 12.66 gm of cocaine, 92.44 gm of ketamine, 7,152.14 gm of cannabis in herbal form and 619.88 gm of Ecstasy.  The drugs found in the flat had a total street value of $1,092,000.

2.  The applicant was found guilty after trial by a jury of both counts.  On 11 June 2008, he was sentenced by Deputy Judge Longley to a total term of imprisonment of 15 years.

3.  The applicant originally applied for leave to appeal against both conviction and sentence but abandoned the application relating to sentence on 8 January 2009.  By a letter to the applicant from the Registrar of the same date, his application for leave to appeal against sentence was dismissed.  On 10 August 2010, his application for leave to appeal against conviction was heard in the Court of Appeal and this was dismissed on 2 September 2010.

4.  More than six years after he filed his notice of abandonment causing his application to be dismissed, on 5 May 2015, the applicant filed an affirmation applying to treat his notice of abandonment as a nullity and seeking leave to appeal against sentence.

5.  At the end of the hearing, we dismissed his application and these are the reasons for our judgment.

Facts of the case

6.  In summary, the police had kept the flat under surveillance on 23 May 2007.  The applicant was seen to be leaving the flat at 6:39 pm, carrying a shoulder bag.  When he emerged from the lift on the ground floor, he was holding the keys of the flat.  Upon search, four re-sealable transparent plastic bags containing 111.34 gm of a solid which contained 67.31 gm of cocaine were found from the shoulder bag.

7.   The police brought the applicant to the flat and used the keys seized from him to open the door.  A search was conducted at the flat where the dangerous drugs in count 2 were found.

Reasons for Sentence

8.  In mitigation, the applicant’s counsel submitted that the sentences for both counts should run concurrently.  Counsel tendered to the court a letter written by the applicant’s mother, then aged 67, and a letter from a medical doctor.  The doctor stated that the applicant’s mother was suffering from pulmonary obstructive disease, neck and back pain, and gastric and bowel disease, and he would recommend her to have continuous medical attention and treatment.  The mother asked the court to impose a lenient sentence as she was afraid she might not live long enough to see her son’s release.

9.  In his reasons for sentence, the judge stated that it was obvious from the evidence the applicant “was deeply concerned in the trafficking in dangerous drugs and that substantial profits were to be made from this business”.  The judge noted that the applicant was not simply trafficking in one type of drug but in a variety of drugs and, therefore, able to cater to a wider market amongst those who were drug dependent.

10.  The judge adopted a starting point of nine years’ imprisonment for count 1.  As for count 2, the judge stated that had the subject matter of count 2 been the subject of separate counts, he would have adopted a starting point of five years’ imprisonment in respect of the cocaine, three years in respect of the herbal cannabis, five years in respect of the Ecstasy tablets and 2½ years in respect of the ketamine.  However, since they were not the subject of separate counts, the judge indicated that he had to decide the appropriate overall starting point for a variety of drugs of different degrees of harmfulness but which, together, have a substantial commercial value.  He was satisfied that the overall starting point for the drugs in count 2 was eight years’ imprisonment.

11.  The judge did not find any mitigating circumstance which would warrant any discount in terms of sentence from the starting points as he had indicated.  He noted that although this was the applicant’s first conviction for trafficking, it was not his first conviction for a serious criminal offence.

12.  Apparently, the judge did not regard the illness of the applicant’s mother as a mitigating factor to be taken into account in passing sentence.  This is in line with decided cases, see HKSAR v Chan Kin Chung & Anr [2002] 4 HKC 314, in which the Court of Appeal stated at §37 that a “balanced approach to sentencing is one that has proper regard to essential sentencing principle and policy, which includes the principle that the adverse effect of imprisonment upon an offender’s family will not normally be taken into account; and is one that has full regard to the seriousness of the crime, although not ignoring credible evidence that may justify a merciful sentence.”  In HKSAR v To Yiu Cho [2009] 5 HKLRD 309 at §17, the Court of Appeal referred to the observation of Silke V-P in R v Chin Hon Yuen, CACC 393/1988, where he stated that “family circumstances are matters which a wise man would take into consideration before he commits an offence and not after.”

13.  In deciding the overall starting point for both counts, the judge considered that if the drugs in both counts had been the subject of one count, the cocaine alone would have warranted a starting point of ten years’ imprisonment. With the addition of the other drugs, the judge was of the view that an overall starting point of 15 years’ imprisonment would have been appropriate.

14.  The judge sentenced the applicant to nine years’ imprisonment for count 1 and eight years’ imprisonment for count 2.  He ordered six years of the sentence for count 2 to run consecutively to the sentence for count 1, so the applicant was sentenced to an overall sentence of 15 years’ imprisonment for both counts.

Application to treat the notice of abandonment as nullity

15.  In support of his application, the applicant has filed two affirmations dated 5 May 2015 and 14 August 2015, attaching a number of medical reports and records relating to his mother, now aged 74.

16.  According to the medical documents, the applicant’s mother is suffering from advanced stage lung cancer.  An operation for the lung cancer was done on 12 March 2015 and a letter of the cardiothoracic unit of the Queen Elizabeth Hospital printed on 15 March 2015 stated that she was hospitalized for further management and recovery.  A more recent letter from the West Kowloon Psychiatric Centre printed on 4 August 2015 certified that she has terminal stage lung cancer and is on palliative treatment only since no curative treatment is available.  She suffered from low mood, poor sleep and concentration and had suicidal idea.  She needed to take antidepressant and attended follow-up treatment for both her physical and psychiatric condition.  Her main wish is to have her son released early to accompany her till the end of her days.

17.  The applicant stated in his 1^st affirmation he is “filled with remorse” for what he was charged with, which “may have a negative influence on society”.  He urged the court to reduce his sentence on humanitarian grounds as his mother is suffering from terminal lung cancer and will soon pass away.  He explained he had “no choice” but to abandon the thought of applying for leave to appeal, as the watchman of the building refused to testify as a defence witness.  He asked to be released from prison early so that he could fulfil his duties as a filial son before his mother passes away, as fulfilling one’s filial duty is regarded to be the utmost importance in Chinese society.

18.  In his 2^nd affirmation, he stated he wished to call his mother and his elder sister Tam Yuk Wun to address the court on his behalf.

19.  At the hearing, he addressed the court at some length.  Most of what he said related to his allegations that he was wronged by the police and that his former trial counsel had failed to conduct his case competently, matters which were rejected by the Court of Appeal when his application for leave to appeal against conviction was dismissed in September 2010.  He stressed the circumstances of his mother and expressed the wish he would like to be a filial son in her last days.  He claimed he did not know the importance of the notice of abandonment that he signed and it never occurred to him the consequence of abandonment could be that serious.  He gave these reasons why he had signed the document.  He said that his counsel did not accept the grounds he put forward for seeking a reduction of sentence, and counsel had told him he would still have a chance to ask for reduction of sentence after his application for leave to appeal against conviction was dealt with.  Also, he did not think he should pursue the sentence application at the same time he was pursuing his application for leave to appeal against conviction.  He emphasized he has good grounds to appeal against sentence as the terms imposed for the two counts should have been made concurrent and at one stage he was granted legal aid to appeal against sentence.

Discussion and conclusion

20.  As the Court of Appeal has stated in HKSAR v Lai Siu Cheung [2005] 1 HKLRD 1 at §23, once an appeal has been abandoned and therefore dismissed, the appeal court is not empowered to hear it.  To do so would require statutory authorization and for that none exists, save the power conferred on the Chief Executive to refer a case to the Court of Appeal under section 83P of the Criminal Procedure Ordinance, Cap 221.  There is no inherent jurisdiction to entertain the reopening of an appeal which has been dismissed.  The restoration of an appeal after an abandonment is permissible only where it can be demonstrated that the abandonment of the original application was a nullity.

21.  The test to be applied in an application to treat an abandonment as a nullity is as stated in HKSAR v Law Kam Fai & Anr [2006] 2 HKLRD 879 at §44:

“…The test to be applied is that the court must be satisfied that the abandonment was not the result of a deliberate and informed decision, meaning that the applicant’s mind did not go with the act of abandonment. The court does not inquire into the merits of the actual application for leave to appeal at all; nor should it until the said test has been satisfied. In other words, the outcome of an application to treat the abandonment as a nullity does not depend on the validity or cogency of the underlying application whose abandonment is sought to be nullified. How good or bad the underlying application for leave to appeal against conviction or sentence may be, this is irrelevant.”

22.  Hence, we would not entertain arguments on the merits of the application for leave to appeal against sentence and would only do so if we were to order that the abandonment were to be treated as a nullity.  The reason for adopting strictly such a two-stage approach was explained in HKSAR v Ooi Lim Khoon [2011] 5 HKLRD 100 at §§9 to 12.  By abandoning the appeal, the applicant has caused the appeal process in respect of the abandoned appeal to be brought to an end, for any abandonment of appeal operates as a dismissal of the appeal, see rule 39 of the Criminal Appeal Rules, Cap 221A.  Once the appeal is dismissed, the appeal court is functus officio and until the abandonment is set aside it simply does not have jurisdiction in respect of the abandoned appeal.

23.  The focus of the court’s present enquiry is the state of mind of the applicant at the time he signed the notice of abandonment.  The burden is on the applicant to persuade the court by credible evidence of facts which would satisfy the nullity test (Ooi Lim Khoon, §§14 and 16).  He would need to show that the abandonment “was not the result of a deliberate and informed decision”.  In other words, he did not intend to abandon the appeal, or did not understand the nature or effect of signing the notice of abandonment such that his mind could be said not to go with the act of abandonment (R v Bridges (1998) 104 A Crim LR 322 at 329 to 330).  The mere fact that the applicant was mistaken about the prospects of success on appeal when he signed the notice giving up the right of bringing an appeal would not suffice (Lai Siu Cheung at §26; Law Kam Fai at §45), as in such a situation the applicant knew what he was doing in signing the notice of abandonment, that he had a possible appeal to the Court of Appeal and he was expressly abandoning that possibility.

24.  The starting point for the court will be that in most cases, persons signing an important legal document by which they throw away their possible right of appeal will be taken to be aware of what they are doing (Ooi Lim Khoon, §16).  As stated in Lai Siu Cheung at §28: “The person who, properly informed, knows what the document is that he or she is signing and who, properly informed, knows what the effect is of the document he or she is signing and, with that knowledge, deliberately signs the document, will be hard pressed to show that that act is a nullity.”  And in Law Kam Fai at §45: “In most cases, however, without more, a person can be taken to realize that when he is signing a notice of abandonment, he is doing just that.”

25.  The applicant applied to treat his abandonment as a nullity more than six years after his application for leave to appeal against sentence was dismissed.  The only reason appeared to have been advanced for bringing this application was the terminal illness of his elderly mother.  The only explanation given in his affirmations for abandoning the application for leave to appeal was that the watchman of the building had refused to testify as a witness for him.  In his oral submissions to this court, he mentioned other reasons, being the advice he received from his former barrister and his thinking that he should not pursue the application regarding sentence when he was actively pursuing his application for leave to appeal against conviction.

26.  Assuming that he was wrongly advised by his former barrister about the prospects of success on his appeal against sentence, there was nothing to indicate that he did not understand the nature or effect of the notice of abandonment when he signed it.  There is no credible evidence before us that he did not understand the consequence in signing the notice or the importance of the document he signed.  We do not accept his unsubstantiated assertion made belatedly that he was wrongly advised by counsel he would somehow have a chance to ask for reduction of sentence after his application for leave to appeal against conviction was dealt with.  Had he really been so advised, it is improbable he would have waited for six years to revive the application relating to sentence.  Whatever might be his true reasons for signing that notice, it was clearly a deliberate and informed decision on his part.

27.  We do not think the applicant’s mother or sister would be in a position to provide any meaningful information on the applicant’s state of mind at the time he signed the notice of abandonment in January 2009.  We therefore declined to hear any evidence from them.

28.  Applying the legal principles, the applicant has not discharged his burden to satisfy this court by any credible evidence why his abandonment should be treated as a nullity.  We have no jurisdiction in respect of his abandoned appeal against sentence.  As jurisdiction is not revived, the court is functus officio and it would not be right to entertain arguments on the merits of the abandoned appeal, whether on humanitarian or any other ground.  We express no view whether this is a suitable case for the Chief Executive to exercise clemency under section 83P of the Criminal Procedure Ordinance.

29.  For all the above reasons, this application is dismissed.