HKSAR v. MOHAMMAD HAFIZ AND ANOTHER

CACC284/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 284 OF 2003

(ON APPEAL FROM DCCC NO. 216 OF 2003)

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J U D G M E N T

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Jackson J (giving the judgment of the Court) :

Introduction

1. The applicants were jointly charged with an offence of handling stolen goods contrary to sections 24(1) and (2) of the Theft Ordinance, Chapter 210. The particulars to the charge show that on 10 January 2003, they dishonestly received certain stolen goods, namely one generator, knowing or believing the same to be stolen goods. The applicants pleaded not guilty to the charge but were both convicted after trial during which they both elected neither to give nor to call evidence. On 18 June 2003, they were each sentenced by Her Honour Judge Chua in the District Court to a term of two years' imprisonment.

2. On 7 July 2003, the applicants each filed a Notice of Application for leave to appeal against sentence. What each of them said was :

"We have not committed any crime but still [we were] charged and the sentence for this offence is too much, please reduce our sentence. We have not done any crime before, also our record is clean, please pity on us, please approve our appeal request for one charge. The sentence is too much please have pity on us."

The 1st applicant added :

"My family is here, there is no one to look after them."

3. Applications by both applicants for legal aid to pursue their appeals were refused on their merits on 19 August, and on 26 August both applicants abandoned their applications for leave to appeal against sentence and those applications were so marked on that day and were accordingly dismissed.

The present applications

4. On 7 October each applicant made a fresh application to appeal against sentence and they applied again for legal aid which latter applications were refused on their merits on 20 October.

5. We treat the fresh applications for leave to appeal against sentence as being Notices of Motion seeking leave to treat the abandonment by each applicant as a nullity.

6. What the 1st applicant says in his notice regarding the abandonment is this :

"My decision to cancel my appeal was premised on confusion and ignorance on the mechanics of the judicial processes."

The 2nd applicant suggests that the reason why he abandoned his original appeal was because legal aid was not granted and he himself was confused.

7. The question for this court is whether the abandonment by either applicant is shown not to have been the result of a deliberate and informed decision, in that his mind did not go with his act of abandonment (See R.v. Medway [1976] 1 62 Cr App R85 as cited in HKSAR v. Lai Siu Cheung, Cr App 487/2002).

8. The position in law in Hong Kong was made quite clear and very recently in the judgment of this court in Lai Siu Cheung handed down last month. In particular at paragraph 28 of the judgment it says this :

"... once an appeal has been dismissed, the court is functus unless the dismissal was itself based on an act which was a nullity; that when one asks whether an act is a nullity, it is to the act of abandonment itself that one looks; and the approach recognizes, also, that the right of appeal is conferred by statute and that there is no inherent jurisdiction to entertain the reopening of an appeal once dismissed. The person who, properly informed, knows what the document is that he or she is signing and who, properly informed, knows what the effect is of the document he or she is signing and, with that knowledge, deliberately signs the document, will be hard pressed to show that that act is a nullity. ..."

9. During the hearing of these applications before us both applicants accept that the principal reason why they abandoned their original applications for leave to appeal against sentence was the refusal of legal aid.

10. The applicants have not established to our satisfaction that their minds did not go with their deeds when they abandoned their applications. It must follow that the applications before us must be dismissed.

11. We would only add our view given the trial judge's reasons for sentence that had we decided otherwise the sentence of two years' imprisonment imposed after trial for an offence of receiving stolen construction site machinery of a substantial value could not be said to be either manifestly excessive or wrong in principle.