HKSAR v. FU CHIU WA

CACC 452/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 452 OF 2002

(ON APPEAL FROM HCCC NO. 358 of 2001)

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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.  On 20 August 2002, the applicant was sentenced to 12 years’ imprisonment for trafficking in over 4.2 kilogrammes of ketamine following a trial before Deputy High Court Judge Day and a jury.  Shortly thereafter, the applicant filed notice of an application for leave to appeal against conviction but he abandoned this application on 25 June 2003, two days before it was due to be heard.  Some 21 months later, the applicant filed an affirmation, dated 21 March 2005, in which he sought to have the abandonment of his application treated as a nullity.  He set out his reasons as follows:

“I was ignorant of the law then and did not know English.  I only felt that I had been wronged.  Therefore, the reason for the appeal which I put forward to the Legal Aid Department was that the jury failed to consider the doubts properly and misjudged the case.  In the result, the Legal Aid Department did not approve my application.  I did not have the money to engage a lawyer either and I did not know how to put forward my defence.  Therefore, I could not but abandon my application for appeal for that time being.”

2.  Similarly, in a further affirmation from the applicant, dated 25 January 2006, he again stated that he believed the effect of abandoning was only a “temporary cancellation”.  Today, for the first time, the applicant has attempted to suggest that he was misled by members of the staff, at the prison where he was being held, into believing that he could restore his application in due course despite having signed the form of abandonment.  We do not accept the applicant’s new account.

3.  As Mr David Leung was quick to point out in his written submission, there was no possible basis for the applicant to have been labouring under a misunderstanding that the effect of abandoning his application had only temporary repercussions.  The form VII reads:

“I abandon all further proceedings in regard thereto.”

4.  It is plain to us that the applicant’s mind went with his act when he signed the form abandoning his application for leave to appeal against conviction (see: HKSAR v Lai Siu-cheung [2005] 1 HKLRD 1).

5.  We can find no grounds for treating the abandonment as a nullity and this application is, therefore, dismissed.