HKSAR v. YEUNG SHING SANG

CACC 374 /2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 374 OF 2013

(ON APPEAL FROM HCCC NO. 452 OF 2012)

____________

____________

____________

J U D G M E N T

____________

Hon Lunn VP (giving the Judgment of the Court) :

1.  By a Notice of Motion dated 2 December 2015, more than five months out of time, the applicant invited this Court to certify that points of law of great and general importance are involved in the decision of this Court of 12 May 2015 and the Reasons for Judgment of 1 June 2015, refusing his application for leave to appeal against conviction out of time.

The applicant’s application for leave to appeal to the Court of Final Appeal

2.  During the course of the hearing on 6 May 2016, Mr Sean, for the respondent, informed the Court that the applicant had made an application to the Court of Final Appeal, dated 26 June 2015, for leave to appeal.  Further, that on 6 July 2015 the Registrar of the Court of Final Appeal issued a summons, pursuant to Rule 7(1) of the Hong Kong Court of Final Appeal Rules, Cap. 484, to the applicant, to show cause why the application should not be replaced.  Finally, on 11 September 2015 the Appeal Committee of the Court of Final Appeal dismissed the application, pursuant to Rule 7(2) of the Hong Kong Court of Final Appeal Rules from the judgments of this Court of 12 May and 1 June 2015.   None of that was known to any member of this Court.

3.  As a result of enquiries made by the Court, we were informed that the Clerk of Court’s Office had received memos on 6 July and 11 September 2015 from the Registrar of the Court of Final Appeal.  In the memo of 6 July 2015, the Clerk of Court was informed that the applicant had made an application for leave to appeal to the Court of Final Appeal, which application had been filed with the Court’s Registry on 26 June 2015.  In the memo of 11 September 2015, the Clerk of Court was advised that the application had been dismissed by the Appeal Committee that day.  That memo was marked (Attn: Deputy CoC, Appeals).  No copies of those memos found their way into any of the papers of the three judges sitting to hear this application.

4.  As a result, we adjourned the hearing of the application to today, 27 May 2016, so that we might be assisted with the argument as to whether or not in those circumstances this Court was functus officio, that this Court has no power to deal with it.  For that purpose only, we granted the applicant legal aid.

5.  The applicant’s application to the Court of Final Appeal for leave to appeal, dated 26 June 2015, was by way of Form B, pursuant to Rule 4 of the Hong Kong Court of Final Appeal Rules.  In it, the applicant stated that the grounds of his application were that:

“ (I) : Trial was gravely unjust

(II) : No application on point of law

(III) : Reasons for out of time:
Because of ignorance of legal procedure it was thought that the time limit would start counting from the delivery of judgment.”

In an attachment to Form B, under the rubric ‘Application to the Court of Final Appeal for Leave to Appeal Out of Time on the following grounds:’ the applicant addressed only the issue of whether or not the application was made out of time, given that judgment had been handed down by this Court on 12 May, but the Reasons for Judgment were handed down on 1 June 2015.

The respondent’s submissions

6.  In their comprehensive and most helpful written submissions, Mr Sean and Mr Ira Lui acknowledged that there is no direct authority on the issue of whether or not this Court is functus officio following an applicant’s unsuccessful application for leave to appeal to the Court of Final Appeal.  First, it is pointed out that this Court has not dealt with an application by the applicant for the certification of a point of law of great and general importance.  Secondly, it was submitted that, although the Court of Final Appeal refused the applicant’s application for leave to appeal on 11 September 2015, nevertheless in exceptional circumstances this Court has power to re-open an appeal [1]. In those circumstances, it was submitted that this Court is not functus officio and should proceed to deal with the application.

The applicant’s submissions

7.  In his helpful and succinct submissions Mr Bernard Yuen, for the applicant, placed emphasis on the acknowledgement by Mr Sean and that there is no direct authority on the issue of whether or not this Court is functus officio following an applicant’s unsuccessful application for leave to appeal to the Court of Final Appeal.  Also, he invited the Court to note that hitherto it had not entertained an application from the applicant pursuant to section 32(3) of the Hong Kong Court of Final Appeal Ordinance.  He too submitted that the Court is not functus officio and should proceed to deal with the application.

8.  In those circumstances, we are prepared to proceed on the basis that this Court is not functus officio.

9.  In the judgment of the Court of 12 May 2015, for which reasons were given on 1 June 2015[2], we refused the applicant’s application for leave to appeal out of time against his convictions on 4 September 2013 after trial by M. Poon J and a jury of procuring another person, Ms X, to do an unlawful sexual act by false pretences, contrary to section 120(1) of the Crimes Ordinance, Cap. 200 (Count 1) and of the rape of Ms X, contrary to section 118(1) of the Crimes Ordinance, Cap. 200 (Count 4).  We rejected the application for filing the notice of his application for leave to appeal against conviction nine months out of time.  We concluded that the application was, “a cynical attempt to manipulate the processes of this Court.” [3]  Notwithstanding that finding, we determined that there were no merits in the proposed grounds of appeal against conviction [4].

10.  The offences were committed at the applicant’s home in Kwun Tong, Kowloon between 28 and 29 June 2012.  On 3 October 2013, the applicant was sentenced to 3 years’ imprisonment in respect of Count 1 and 12 years’ imprisonment in respect of Count 4, which sentences were ordered to be served concurrently.

11.  The applicant’s application for leave to appeal against sentence, filed with the Court on 17 October 2013, was heard and the appeal allowed by this Court in May 2014 and the sentence of 12 years’ imprisonment imposed in respect of Count 4 was quashed.  In its place, the Court imposed a sentence of 10 years’ imprisonment.[5]

12.  On 3 July 2014, the applicant filed a Notice of application for leave to appeal against conviction, nine months out of time. 

13.  The points of law, identified in an attachment to the Notice of Motion, dated 2 December 2015, said to be of great and general importance are identified by the applicant as being:

1.    With no “psychotropic” medication between 28 August 2013 and 4 September 2013 [eight days in total] my rights to defend and contest were affected.

2.   Against the Secretary for Justice, why wasn’t the accomplice [Jin] prosecuted?

3.   The victim [X] knew that the rituals would involve sexual acts.  The two charges against the defendant were inappropriate.

4.   The acts of [the interpreter] of the Court of First Instance prejudiced the trial and interfered with the facts of the case.

5.   During the hearing of the appeal against conviction the applicant’s right [right of knowledge] was not protected.

6.   Explanation to and the right of an applicant suffering from mental illness in relation to delay or application for leave to appeal out of time.

7.   During the trial, the judge [Maggie Poon] said to the clerk in [Punti] “tear off the document/s and throw it/them away”.  Were the documents supposed to be casually torn off?  The act of [Maggie Poon] was not only an irregularity but also against the law.

The respondent’s submissions

14.  Mr Eddie Sean, on behalf of the respondent, submitted that the applicant had provided no reasonable explanation for making the application out of time.

15.  Of the first of the issues identified as raising points of law of great and general importance, namely that the applicant had been deprived of appropriate medication during part of the trial, he submitted that the matter was one of fact which had been addressed in the judgment of the Court, in particular that the issue of the applicant’s health had been raised by his counsel with the court as a result of which the applicant sought treatment in Queen Elizabeth Hospital.  Further, that after his return to court counsel informed the judge that the applicant’s medication had been returned to him.  Mr Sean submitted that none of the other questions identified were questions of law of great and general importance arising from the decision of this Court.

16.  Today, the applicant has addressed the Court orally in respect of his argument about interpretation at trial.  In doing so he acknowledged that he was represented at trial by bilingual counsel, namely Mr Bernard Chung and he also acknowledged that no issue was raised by counsel during the trial about interpretation.

A consideration of the submissions

The explanation for the application to the Court for certification being out of time

17.  In his submissions in support of his application, dated 2 December 2015, insofar as the applicant offers any explanation for the fact that his application is over five months out of time, he appears to submit that the application of a time limit in which to file a notice of an application for leave to appeal against conviction or to seek certification on points of law of great and general importance in respect of an applicant suffering from psychiatric illness, of whom he is one, is a violation of the rights of a person in Hong Kong.

18.  At the request of the Court, we have been provided with reports by Dr Choi Wing Kit, a visiting consultant psychiatrist at Siu Lam Psychiatric Centre, and by Mr Joe Wong, a clinical psychologist in the Correctional Services Department, dated 18 and 19 May 2016 respectively.  Dr Choi states that the applicant has been and continues to be detained in Siu Lam Psychiatric Centre because, “...of the estimated high risk of suicide, which was believed to be precipitated by multitudes of factors.  They include: the ongoing psychosocial stresses related to his marital and childcare problem, residual depressive symptoms, personality issues and the associated interpersonal difficulties in the custodial environment.”

Determination

19.  For the purposes of this application, in all these circumstances, we are prepared to grant the applicant leave to make the application out of time.

20.  None of the matters identified by the applicant give rise to points of law of great and general importance arising from the decision of this Court.  The issue of the withdrawal of the applicant’s medication during part of the trial was a matter of fact addressed by this Court in its judgment.  It does not give rise to a point of law.  The other matters raised by the applicant speak for themselves.  Clearly, they do not give rise to points of law of great and general importance arising from the decision of the Court.

Conclusion

21.  Accordingly, we decline to certify that there are points of law of great and general importance arising from the decision of this Court.