HKSAR v. CHIANG YIU ON, MARCO

CACC 344/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 344 OF 2015

(ON APPEAL FROM HCCC NO 99 OF 2015)

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J U D G M E N T

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Hon Zervos J (giving the Judgment of the Court):

Introduction

1.  On 23 September 2015, having pleaded guilty to unlawful trafficking in 1,895 grammes of methamphetamine hydrochloride, commonly known as “Ice”, at Hong Kong International Airport on 9 September 2014, the applicant was sentenced to 17 years’ imprisonment.  On 8 October 2015, the applicant filed a Form XI by which he gave notice of an application for leave to appeal against sentence, on the general grounds that the sentence was excessive.  He abandoned his application on 14 January 2016, by filing a Notice of Abandonment which, pursuant to Rule 39 of the Criminal Appeal Rules, Cap 221, was dismissed.  Once an appeal has been dismissed, the appeal court is functus officio (the court’s duty or authority has come to an end) and until the abandonment is set aside it has no jurisdiction in respect of the abandoned appeal.

2.  On 28 July 2016, the applicant filed an affirmation with the Court in which he applied to reopen his application for leave to appeal against sentence.  It appears the basis of his application is that he is seeking a reduction on his sentence, having provided assistance to the authorities.

3.  Despite having been requested in letters from the Court dated 20 January and 24 February 2017 to file evidence to support his application that his “abandonment was not the result of a deliberate and informed decision” before the Court could treat his abandonment as a nullity, the applicant has not done so. 

The relevant principles in relation to a nullity application

4.  In the Notice of Abandonment, the Form VII, which the applicant signed, it directed his attention to rule 39 of the Criminal Appeal Rules (Cap. 221 sub. leg. A) and went on to note:  

“2. Under that rule 39, on receipt by the Registrar of your notice of abandonment, your appeal is deemed to have been dismissed. The Court of Appeal has no inherent jurisdiction to permit your appeal to be reopened unless –

(a) your abandonment of the appeal is treated as a nullity; or

(b) there is a reference to the Court of Appeal by the Chief Executive under section 83P of the Criminal Procedure Ordinance (Cap. 221)

3. Only in exceptional circumstances, where the Court is satisfied that the abandonment was not the result of a deliberate and informed decision, will the Court treat the abandonment as a nullity.”

5.  The applicant was put on notice when he signed the abandonment that the Court of Appeal would no longer have jurisdiction to deal with his appeal unless it could be shown that his abandonment was a nullity.  He was also informed that that would only occur in exceptional circumstances where the Court was satisfied that the abandonment was not the result of a deliberate and informed decision.  In signing the abandonment, the applicant was made aware that his act was the result of a deliberate and informed decision.

6.  The test and the relevant principles in relation to an application to treat an abandonment as a nullity were succinctly explained by Kwan JA in HKSAR v Ip Wai Ho Micky [2015] 5 HKLRD 567, in the following paragraphs:

“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 (HKSAR v Ooi Lim Khoon [2011] 5 HKLRD 100 at [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]-[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 (HKSAR v Lai Siu Cheung [2005] 1 HKLRD 1at [26]; HKSAR v Law Kam Fai [2006] 2 HKLRD 879 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 realise that when he is signing a notice of abandonment, he is doing just that.””

7.  See also HKSAR v Chang Wai Hang Alab [2017] 1 HKLRD 163, at paragraph 31. 

8.  In deciding a nullity application, the court is not concerned with the merits of the underlying application for leave to appeal.  This was made very clear by Ma CJHC (as the Chief Justice then was) in HKSAR v Law Kam Fai [2006] 2 HKLRD 879, at paragraph 44:

“…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. …”

9.  It therefore falls on the applicant to persuade the Court by credible evidence of facts that despite signing the notice of abandonment as he did, he did not intend to abandon the appeal, or did not understand the nature or effect of signing the notice such that his mind could not be said to have gone with the act of abandonment. 

The application fails

10.  Despite being repeatedly reminded to do so, the applicant has chosen not to address the application by seeking to satisfy the Court on credible facts and circumstances that his abandonment was not the result of a deliberate and informed decision.

11.  We also invited the applicant to address us on this matter at the hearing of the application.  He was unable to provide any credible or acceptable explanation other than he signed the abandonment on counsel’s advice which would indicate that he did so on a deliberate and informed basis. 

12.  The applicant having not addressed this application, nor able to provide any explanation to us at this hearing, means that there is no credible evidence before us that can satisfy the nullity test. 

13.  The application therefore fails, and is dismissed.

Assistance rendered to the authorities after sentence

14.  It appears the applicant has initiated this application on the premise that he feels he is entitled to a reduction to his sentence for the assistance he has rendered to the authorities which, at the time when he was sentenced, could not be properly evaluated and taken into account, if that was appropriate. 

15.  Where a defendant has provided assistance to the authorities after sentence, he can petition the Chief Executive pursuant to Article 48(12) of the Basic Law to commute his sentence.  See HKSAR v T, CACC 397/2006, 16 June 2009, unreported, at paragraph 26, where Yeung JA (as he then was) pointed out that the petition will likely be referred to the Long-term Prison Sentences Review Board.