HKSAR v. KWOK PUI TUN TOMMIE

CACC 339/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 339 OF 2003

(ON APPEAL FROM HCCC 314 OF 2002)

---------------------

----------------------

-----------------------

J U D G M E N T

-----------------------

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

1. This is an application for leave to appeal against sentence. The applicant pleaded guilty in July 2003 to a count of conspiracy to defraud and was sentenced by Mr Justice Tong to a term of seven years' imprisonment.

2. He appears in front of us today unrepresented and after asking for an adjournment so that some authorities could be copied, and asking also for a copy of the respondent's submissions, he has withdrawn his appeal and, accordingly, his application for leave to appeal is dismissed. We would add that, having studied the merits of the matter, that was a sensible course, because on the merits we would undoubtedly have dismissed the application.

3. It would not normally be necessary to deliver a judgment in these circumstances but we take this opportunity to do so in order to comment on the failure by the respondent to serve the applicant with a copy of the respondent's written submissions.

4. We had in the course of today's hearing to adjourn whilst the respondent's submissions were translated to the applicant. This was because those written submissions had not been served upon the applicant. Mr Ma, for the respondent, informed us that they were never sent to the applicant because the applicant was unrepresented. Mr Ma took the view, apparently, that when an applicant is unrepresented it is unnecessary to serve submissions upon him. After the adjournment for the submissions to be translated and for Mr Ma to ascertain prosecution policy as to service, he informed us that there is in the Department of Justice no stated policy or directive, one way or the other, as to whether or not submissions are to be served on unrepresented applicants. If this is so, then it shows a lack of attention to a most fundamental principle - one which takes us by considerable surprise. We are told also that in any event service of submissions of this kind is left in the hands of the police officers in-charge of the cases. This too is unsatisfactory.

5. It seems that either in this case or generally the fundamental principle is not understood, one which any lawyer should know, that any submissions to and any correspondence with the court must always be copied to the other party whether or not the other party is represented. We sincerely hope that this matter will attract urgent attention and correction.