HKSAR v. YAU KA MING

CACC 322/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 322 OF 2009

(ON APPEAL FROM DCCC NO. 442 OF 2009)

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REASONS   FOR   JUDGMENT

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.  On 8 September 2009, the applicant was convicted after trial by Judge Yung in the District Court of trafficking in dangerous drugs, namely, 247.52 grammes of a powder containing 12.7 grammes of ketamine.  He was sentenced to four years’ imprisonment.

2.  On 29 September 2009 he lodged an application for leave to appeal against conviction.

3.  On 9 December 2009 the applicant filed a notice of abandonment of that application.

4.  By an affirmation dated 8 March 2010, he sought leave to restore his application for leave to appeal.  That, as a matter of law, is an application to treat the abandonment as a nullity.

5.  On 7 October 2010, we granted the application to treat the abandonment as a nullity but dismissed his application for leave to appeal against conviction.  We said that we would give reasons later and this we now do.

The abandonment

6.  In his affirmation in support of his application to treat the abandonment as a nullity, the applicant asserts that shortly before the originally proposed date of the hearing of his appeal, he was informed by the Registrar of the High Court that his appeal hearing was approaching but, at that time, he was not ready because he had unsuccessfully been seeking to obtain legal advice.  He says that he thought that he would be allowed to lodge his application afresh at a later date.

7.  The notice of abandonment, signed by the applicant, is specific in its representation that “having sent notice of appeal to the Court of Appeal against my said conviction [I] give you notice that I abandon all further proceedings in regard thereto.”

8.  Accordingly, we were initially minded to the view that the applicant would have considerable difficulty in showing, the burden being on him, that his mind did not go with the act of abandonment, in the sense that he did not understand the effect or consequences of the document he had signed: see HKSAR v Lai Siu Cheung [2005] 1 HKLRD 1.

9.  However, in the course of the hearing, we enquired more closely into the history of the matter and it is, in the context of such applications, an unusual one.

10.  After the filing of the notice of application for leave to appeal against conviction, there was correspondence between the Court and solicitors then acting for the applicant.  It shows a number of letters between 9 October 2009 and 2 December 2009 from the Registrar to the solicitors, reminding them to file perfected grounds of appeal and to provide an estimate of time for the hearing. It would appear that no replies were sent until 2 December 2009 when the solicitors notified the Court that they had no further instructions to act for the applicant and had, accordingly, ceased to act in the matter.  The applicant informed us in the course of the hearing that he had failed to raise sufficient funds to instruct solicitors.

11.  On 3 December 2009, the Registrar wrote to the applicant informing him that his application for leave to appeal would be listed within one month.

12.  We have already seen that on 9 December 2009, only six days after that notification, the applicant filed the notice of abandonment.

13.  Our enquiries revealed that within a short time thereafter, the applicant applied for legal aid.  This fact is supported by a letter shown to us, from the Director of Legal Aid, dated 28 December 2009 acknowledging the applicant’s request for legal aid and advising him that he ought not, pending the Director’s decision, abandon his appeal.

14.  This history revealed to us clearly enough that when the applicant signed the notice of abandonment in early December 2009, he did not appreciate the effect in law of so doing.  The history supports his contention that, faced with an imminent hearing date, he thought that the document he signed was a device by which to procure more time and the fact that he immediately thereafter sought legal aid to pursue his appeal demonstrates that he did not appreciate that by abandoning the application for leave to appeal, that application for leave would, by operation of law, be dismissed.

15.  For these reasons, we treated the abandonment as a nullity.

16.  We pause to suggest that some consideration be given to the wording of the prescribed form of notice of abandonment, in order to make it clear to a convicted person who does not have the benefit of legal advice that an abandonment is different from an adjournment and that in consequence of the abandonment, the appeal will automatically stand dismissed.

The conviction

17.  The facts of the case were simple enough.  The applicant was found in possession of three bags containing dangerous drugs and the market value of the drugs was close to $30,000.  In the premises in which the applicant was found were polythene bags and an electronic scale.

18.  The police evidence was that at the time of his arrest, the applicant said that he had purchased the ketamine for his own consumption and not for sale.

19.  The applicant challenged the admissibility of this admission of possession but was unsuccessful in that challenge.

20.  The applicant gave evidence on the voir dire but not on the general issue.

21.  The judge was satisfied from the street value of the drugs and the circumstances of the applicant’s possession, that the applicant possessed the drugs for the purpose of trafficking.

22.  The applicant asserted to us that the drugs were planted upon him by the police and prayed in aid the fact that one of the arresting officers was a witness in another drugs case where a defendant was acquitted and against whom an allegation of theft was made by the defendant in that case, which allegation is now under investigation.

23.  Those suggested events that took place after the conviction in this case; the officer concerned was not the officer who noted the statement from the applicant in this case, which statement was held to be voluntary; and in all the circumstances we saw no basis upon which to upset the conviction.