THE QUEEN v. WONG YIU LUN

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JUDGMENT OF THE COURT

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Silke, V.-P.:

1. On 15th February 1990 when judgment was given in respect of the application for leave to appeal against conviction and that application was dismissed, Mr. Sedgwick who, together with Mr. Nguyen, appeared for the applicant was set fair to proceed on an application for leave to appeal against sentence. Grounds had been filed but it transpired, to his surprise, that the applicant had filed a Notice of Abandonment of that application.

2. An affidavit was filed on 9th January with the purpose of seeking from this Court the indulgence of allowing the applicant to withdraw his Notice of Abandonment. In that affirmation the applicant had explained that he wrongly believed that the appeal against sentence must follow the appeal against conviction. His belief was based on an erroneous reason that if his appeal against conviction is allowed then his appeal against sentence need not be dealt with by the Court, therefore, two appeals cannot be heard at the same time. For that reason he filed the Notice of Abandonment.

3. The Court was not then satisfied that the contents of that affidavit were sufficient to give grounds to treat the Notice of Abandonment as a nullity. The matter was adjourned for a fresh affirmation to be filed which has now been done.

4. Mr. Sedgwick has described that as very honest and indeed it is. In it the applicant says that he had read the statement which appears on the general notice of application for leave to appeal to the effect that an appeal against sentence is not adverse in any way to an appeal against conviction. The applicant says he was "stupid" in filing the Notice of Abandonment - as we have said, a frank admission.

5. The issue is here does stupidity amount to nullity. In The Queen v. Wong Wai Leung, Criminal Appeal 369 of 1989 (as yet unreported), in which the reasons were handed down on 22nd March 1990, a similar issue arose. In the judgment of the Court reference is made to Chan Tak Kwong v. The Queen. [1983] HKLR 391 which had adopted the decision of the English Court of Appeal in Medway (1976) 62 Cr.App.R. 85.  Medway was also followed in The Queen v. Tam Kwok, Criminal Appeal 310 of 1983. Medway described the kernel of the nullity test as being where the abandonment did not result from a deliberate and informed decision, in other words, where the mind of the appellant or applicant did not go with his act. Medway also held that there was no inherent jurisdiction enabling the Court to give leave in other special circumstances.

6. English Courts can, of course, where a Notice of Abandonment cannot be treated as a nullity and they are satisfied that injustice would ensue if the matter is not dealt with, refer the matter to the Secretary of State. We held, in Wong Wai Leung, that this Court has an analogous jurisdiction to advise and assist the applicant to petition His Excellency the Governor for a Reference to be made to this Court.

7. We do not here consider that the applicant's affirmations satisfy the test in Medway as adopted by the Courts of Hong Kong. It would be a matter for him, should his advisers think fit, to petition His Excellency the Governor and that is the course now left open to him. The application will be refused.