HKSAR v. DJULIANTO NURLINA

CACC 69/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 69 OF 2001

(ON APPEAL FROM DCCC 1122 OF 2000)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. This matter is presently listed before us as an application to treat the abandonment of an application for leave to appeal against a sentence of five years' imprisonment as a nullity. This was imposed in the District Court on 20 February 2001 by Judge W. Wong for an offence of trafficking in 4,991 tablets containing approximately 651 grammes of 3,4-methylene-dioxy-methamphetamine hydrochloride (MDMA, more commonly known as 'ecstasy') and two tablets containing 13 milligrammes of methamphetamine ('ice'). This was a sentence which, having regard to the guidelines laid down in HKSAR v Lee Tak-kwan [1998] 2 HKLRD 46 might be considered to have veered on the side of leniency. The Applicant was an importer of these drugs.

2. Plainly, with sixteen months now having elapsed since conviction and sentence, this case has a lengthy history. In summary, the Applicant's leave applications, originally in respect of conviction and sentence, came before the single judge on 29 June 2001 but this was postponed to enable the Applicant further time to engage a lawyer. When the matter was restored to the list on 31 August 2001, a further adjournment was requested by the Applicant, but this was refused. The applications for leave to appeal were then considered and rejected.

3. On 3 January 2002, the case came before the full court (including the two members of the court as presently constituted) as a renewed application for leave to appeal against conviction and sentence. On this occasion, the Applicant was represented by counsel, Mr Keith Fung. However, following an adjournment, and after the Applicant's counsel had taken instructions, the court was informed that the Applicant wished to abandon her applications in relation to conviction and sentence. As these had not been pursued, the court then dismissed them.

4. Now, over six months later, with the matter once more in the list, we are invited to consider the Applicant's affirmation which states that she apologises for the inconvenience she has caused by her "negligence and abandonment" of her previous applications. In her affirmation, she asks on humanitarian grounds for leave to appeal against her sentence out of time.

5. Whether this hearing is to be regarded as an application for an earlier abandonment to be treated as a nullity or as an application for leave to appeal against sentence out of time, we are satisfied that this court has no jurisdiction to entertain the application. There has been no abandonment pursuant to Rule 39 of the Criminal Appeal Rules which applies to written notices of abandonment before a hearing commences.

6. There was a hearing on 3 January 2002, when the Applicant was represented. She decided not to pursue the applications she had made for leave to appeal against conviction and sentence. As these matters were not pursued, the court then dismissed her applications. Although, reading from the court record, the word 'abandonment' appears to have been used when this court dismissed the applications on the last occasion, the position, correctly stated, was that this appeal was dismissed upon a hearing.

7. It is for these reasons this court is now functus.

8. We should add perhaps, lest the Applicant think that she has been deprived of a fair hearing by reason of a legal technicality, that if we had had jurisdiction to entertain this matter, we would have dismissed the sentence application as having no merit. Nothing the Applicant has been able to tell us today was of any weight at all.