R. v. KWOK HING-MAN

Magistracy Appeal No 371 of 1994

HEADNOTE

Subsequent to the applicant's conviction under s. 30 of the Summary Offences Ordinance, the courts held that s. 30 had been repealed under s. 3(2) of the Bill of Rights Ordinance, such repeal taking effect prior to the conviction. His application for leave to appeal made in consequence was about 2½ years out of time.

Held: (granting leave and setting aside the conviction) that where the situation resulting from such a repeal, is that a person has been convicted of what can plainly be seen to have been unquestionably a non-existent offence, it is difficult to see how his application could be refused in the absence of some special circumstances.

IN THE SUPREME COURT OF HONG KONG

Magistracy Appeal No 371 of 1994

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J U D G M E N T

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Nazareth, J.A. (giving the judgment of the Court):

1. This is an application for leave to appeal out of time against conviction. The applicant, Kwok Hing-man, was convicted on 5th September 1991 by Ms C. Por Temporary Magistrate, at Kwun Tong Magistrate Court for being in possession o 11 cartons of cigarettes reasonably suspected of being stolen or unlawfully obtained contrary to s.30 of the Summary Offences Ordinance (Cap 228). He was placed on probation for 12 months.

2. His application for leave has come to be made in the following circumstances. On 19th May 1993, the Privy Council in Attorney General of Hong Kong v Lee Kwong-kut [1993] AC 951, held that s.30 of Cap 228 had been repealed by s.3(2) of the Bill of Rights Ordinance. Such repeal takes effect from the commencement of that Ordinance, i.e. 8th June 1991. When the information was first preferred against Lee Kwong-kut it was dismissed by the magistrate, s.30 being in his view inconsistent with the Bill of Rights. Having appealed to this Court, which upheld the magistrate, the Attorney General then appealed to the Privy Council.

3. Meanwhile those administering the Duty Lawyers Scheme had turned their attention to other persons convicted under s.30 since 8th June 1991. Having discovered that some 386 persons had been so convicted, they wrote to the Attorney General seeking the cleansing of their records, as they put it, and the destruction of relevant files, photographs and fingerprint records. After consideration, the Attorney General replied that he did not propose to take such action as he was satisfied that there were "sound legal policy grounds for leaving undisturbed the convictions of those persons". He based that conclusion "on the public interest in ensuring finality in criminal proceedings and the need to uphold the validity of actions taken under laws which were assumed to be valid at the time". He did not believe it to be "in the public interest to allow cases dealt with under a law subsequently declared repealed to be effectively re-opened months or years after the original proceedings were concluded".

4. That refusal led to the conviction of one Yu Wai-wut being taken up as a test case. Legal aid was obtained for him and following that, leave to appeal out of time was obtained from Ryan J on 19th November 1993. Although the Attorney General was aware of the plan to take Yu Wai-wut's case as a test case, he was not notified of the hearing before Ryan J. In consequence counsel to represent him appeared an hour late without the papers or even having seen them. As a result he felt unable to oppose the application which was then granted. The appeal (Magistracy Appeal 1012 of 1993, unreported) came before Jones J on 22nd March 1994 and the Crown did not oppose it, it was the application for leave that the Attorney General had wished to oppose. Jones J allowed the appeal having regard to Lee Kwong-kut and to the fact that the Crown did not seek to uphold the conviction albeit without prejudice to the cases of other persons convicted under s.30.

5. Accordingly, Yu Wai-wut's case could not be regarded as a satisfactory test case and it was agreed that another would be put up. That of Kwok Hing-man was selected and on 22nd March 1994 application was made for and a legal aid certificate was secured for his application for leave to appeal out of time. The application was made direct to this Court pursuant to the order of the Chief Justice made on 29th March 1994 under s. 118(1)(d) of the Magistrates Ordinance (Cap 227).

6. Mr Sarony, Q.C. who, with Mr James Cheng appears for Kwok, stresses that the position now is clearly that Kwok was convicted of a non-existent offence since s.30 had in law been repealed prior to the conviction and, indeed, the act charged. The courts, he submitted, could neither support nor be seen to be supporting the continuing conviction of a non-existent offence. He urged the Court to make some suitable pronouncement as might enable the convictions to be set aside and expunged without individual applications, necessity for which would tend to bring the courts and the judicial process into disrepute. Individual applications, he submitted, would be the most gross waste of public funds and courts' time.

7. Mr Sarony acknowledged that in objective terms a substantial period of time has elapsed between conviction and the filing of Kwok's application for leave - some 21/2 years. He submits, however, that the time lost in mounting Yu Wai-wut's appeal should not be held against Kwok. In the particular circumstances we are disposed to agree. Continuing, Mr Sarony submits that being young and somewhat illiterate, Kwok could not have been expected to spot the inconsistency of s.30 with relevant articles of the Bill of Rights, or to have anticipated the court's decision. Even the Attorney General's office which had carried out screening of all legislation for that purpose had apparently not spotted the inconsistency. How, therefore, could Kwok be regarded as somehow failing to apply in time when he could not have known or even suspected that he had a ground of appeal? So far as the appeal itself was concerned, Mr Sarony stressed that there was no question but that it must succeed. In that regard he referred to the judgment of Kempster JA (as he then was) in [1987] HKLR 1136 at 1141E-F in which he quoted a R v Currency Brokers (Hong Kong) Ltd and Another judgment of Humphreys, J:

"The classic approach in this context was expressed by Viscount Caldecote, C.J. in R v Cullum (1943) 28 Cr.App.R. 150; quoting an earlier judgment of Humphreys, J.:

'The rules are of importance. We have constantly refused applications for an extension of time within which to make an appeal when there have been no substantial merits brought to our notice which seem to justify the court in extending the time.'

There is other good authority that the merits, in the sense of the prospects of success if time were to be extended, should be taken into account."

8. While that dictum refers to the constant refusal of applications where there are no substantial merits brought to notice, it by no means suggests that exceptionally high or certain prospects of success demand that leave be given. Indeed, it has not been claimed before us that there is authority suggesting that an irrefutable ground of appeal is of itself sufficient to require or justify leave. Mr Bailey for the Crown stresses that what this Court is concerned with is the application for leave, and not Kwok's conviction. He concedes, however, that if leave is granted, the appeal must succeed and that the merits of the appeal are a relevant factor in granting leave, but only one of several factors.

9. R v Marsh and Others (1935) 25 Cr.App.R. 1949 was the first of the three authorities cited by Kempster JA. In refusing the application for extension of time because they found no merits, the Court of Criminal Appeal referred to the "rule and practice of this Court not to grant any considerable extension of time, unless it appeared on the application that there were such merits that the appeal would probably succeed."

10. Given the decision of the Privy Council in Lee Kwong-kut the merits of the appeal here are beyond question. However, Mr Bailey argues that this in principle is no different to the decision of a court of authority removing a misconception as to the prior state of the law upon which a conviction has been based. He calls attention to R v Ramsden [1972] Crim.L.R. 547, 548. There the applicant applied for extension of time well over a year after conviction following the removal by the Court of Appeal of a misconception in law upon which the applicant had been convicted. In refusing the application the court assumed the summing-up was defective because of the misconception and that there was a satisfactory explanation for the delay. The court referred to the "alarming consequences that would flow from any general policy of permitting the reopening of cases by granting a substantial extension of time on the ground that a decision of a court of authority had removed a widely held misconception as to the prior state of the law and that the conviction to be appealed against had been reached in reliance on that misconception".

11. The same sort of question came before the Court of Appeal in R v Mitchell (see [1977] 753 pp 756H-757B) where Geoffrey Lane L.J. said this:

"So the situation is this, the defendant has been sentenced to a term of imprisonment of three years for an offence which on the facts was not a crime. What does the court do? This is an application for an extension of time in which to appeal against conviction. It should be clearly understood, and this court wants to make it even more abundantly clear, that the fact that here has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction."

12. While the removal of a misconception in law relied upon in a conviction bears some similarity to the repeal of an offence-creating statutory provision which is effected prior to the commission of the act charged, plainly the latter may materially differ in terms of the clarity and totality with which the basis of the relevant conviction is nullified.

13. In the latter regard Mr Bailey points to the decision of the Supreme Court of Canada inR v Thomas (1990) 75 C.R.(3d) 352. That, we pause to observe, is the only authority called to our attention in which application for extension of time in which to appeal was prompted by the repeal of the offence-creating statutory provision. Moreover, that was effected in similar circumstances, i.e. having been declared unconstitutional under the Canadian Charter of Rights and Freedoms. There the Supreme Court refused the application, applying the Canadian test of "whether or not [the accused was] still in the judicial system", which for present purposes, it is not questioned, is the same as that applied in Hong Kong in granting leave to appeal out of time. In doing so, it referred to an earlier dictum of the Court in R v Wigman (1987) 33 CCC (3d) 97:

"The appropriate test is whether or not the accused is still in the judicial system. As expressed in the Crown's factum, this test affords a means of striking a balance between the 'wholly impractical dream of providing perfect justice to all those convicted under the overruled authority and the practical necessity of having some finality in the criminal process.' "

14. The Court went on:

"... an application for an extension of time is granted, based on the criteria that normally apply in such cases.

In a case in which the applicant alleges that he or she was convicted under a provision which has since been declared invalid, he or she should not be placed in a worse position than any other applicant. On the other hand, in view of the practical necessity of having some finality in the criminal process, the applicant should not artificially be brought into the system.

In the circumstances of this case, applying conventional principles, an extension of time should not be granted because:

(a) there was no intention established to appeal within the time; and

(b) the delay has not been adequately explained.

Accordingly, the application for an extension of time is dismissed."

15. That decision, a fortiori the approach adopted, is of course, not binding upon this Court, although, as observed before, of high persuasive authority. We think that the relevant principle to be derived from it is best expressed in the last words of the report of R v Ramsden at p.548, i.e. in the last analysis, it is in every case a matter of discretion for the court.

16. We turn then to the exercise of our discretion. We recognise the practical necessity of having some finality in the criminal process. However, it seems to us that the matter here is not so much one of the criminal process itself, but rather the direct result of the legislative scheme adopted which relates back the repeal to the commencement of the Bill of Rights Ordinance. The practical problems that result seem to be much more amenable to a legislative or executive, rather than judicial solution. So far as the courts are concerned, we think the right approach in the present circumstances is that adopted by Geoffrey Lane L.J. in R v Mitchell [1977]1 WLR 753 at p.757G-H:

"If we were to refuse him the extension of time in which to appeal against conviction, we should be keeping him in prison, so to speak, when we as a court were convinced that he had not committed an offence. That again is not an attractive proposition, and it is one from which this court resiles. This seems to us therefore to be the very rare case where the court should exercise its undoubted discretion to allow the extension of time and grant leave to appeal against conviction."

17. Few of those convicted of s.30 offences will still be serving their sentences; however, they continue to be subject to the stigma of the conviction, and more than that to bear the consequences of subsisting records of such conviction. In that regard we pause to say that we are not impressed by Mr Bailey's information that this is mitigated by an endorsement upon such records that s.30 has been repealed.

18. Not all of the 386 persons convicted are likely to apply for leave; nonetheless the present application is unlikely to be a rare or exceptional one. We do not think that would justify us in refusing leave given the situation plainly produced by the legislation, i.e. a subsisting conviction of a non-existent offence. We accordingly grant leave, treat the hearing of the application as that of the appeal, allow the appeal and set aside the conviction and sentence.

19. It remains to address Mr Sarony's plea that this Court make some pronouncement that may prompt the executive to set aside the convictions and expunge the relevant records of the 385 other persons who remain convicted. This Court is of course addressing only the present application, and since each application is a matter for the discretion of the court dealing with it, there is limited room for any. pronouncement that may assist in other cases. However, we feel bound to say this, that where, as in this case, the resulting situation is that a person has been convicted of what can be plainly seen to have been unquestionably a non-existent offence, it is difficult to see how his application could be refused in the absence of some special circumstances e.g. a realistic possibility of the court substituting a conviction for a related offence, or an informed election not to appeal in the knowledge that the offence-creating statutory provision was likely to be struck down. Bearing in mind that such applications for leave will be a matter for the discretion of the particular court concerned, we have consulted the other members of this Court, each of whom has concurred in the foregoing approach.