HKSAR v. CHAK KONG FAI

CACC 353/2019

[2023] HKCA 202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 353 OF 2019

(ON APPEAL FROM HCCC NO 109 OF 2019)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.  The applicant pleaded not guilty to 19 counts of sexual abuse involving different offences, all contrary to various provisions of the Crimes Ordinance, Cap 200 (“the Ordinance”), and stood trial before Deputy High Court Judge Stuart-Moore (“the judge”) and a jury. There were 11 counts of indecent assault, contrary to section 122(1) of the Ordinance (Counts 1, 2, 3, 10, 11, 12 and 15-19); two counts of attempted rape, contrary to section 118(1) (Counts 4 and 13); one count of attempted non-consensual buggery, contrary to section 118A and 159G (Count 6); and one count of rape, contrary to section 118(1) (Count 8). Some of the counts had offences laid in the alternative. The alternative counts were attempted unlawful sexual intercourse with a mentally incapacitated person (“MIP”), contrary to sections 125(1) and 159G, (Count 5, an alternative to Count 4); attempted buggery with a MIP, contrary to sections 118E(1) and 159G, (Count 7, an alternative to Count 6); unlawful sexual intercourse with a MIP, (Count 9, an alternative to Count 8); and attempted unlawful sexual intercourse with a MIP, (Count 14, an alternative to Count 13).

2.  The alternative counts were laid because the victim in this case (“X”), was 15 at the time of the first offence but was 16 when the other offences occurred and since she had autism and mild mental retardation, she was a MIP[1].

3.  The applicant was convicted of Counts 2, 4, 8, 10, 11 and 14-19. Of the counts of which he was convicted, only Count 14 was an alternative MIP count. He was acquitted of Counts 1, 3, 5, 6, 7, 9, 12 and 13, of which Counts 5, 7 and 9 were alternative counts. The judge sentenced the applicant to 15 years’ imprisonment.

4.  On 13 December 2019, the applicant applied for leave to appeal against his conviction and sentence, but abandoned his sentence appeal on 1 June 2020. On 17 December 2021, the applicant’s appeal against conviction was dismissed, and he now applies for his abandonment to be treated as a nullity and for leave to appeal against his sentence.

5.  Before dealing with the nullity application, it would be helpful to set out the relevant facts and the basis of the sentence.

The facts

6.  At the time of Count 2 and all subsequent counts, X was 16 and had been studying at a school for mentally handicapped persons. At the material time, the applicant was 55 and a social worker at the school[2]. X had mild mental retardation and autism[3]. By the verdicts of the jury, it was accepted that X was a MIP within the meaning of section 117 of the Ordinance.

7.  At the school, X was under the care of a female social worker. X was not under the applicant’s supervision because male social workers were responsible for male students only. The applicant and another person were responsible for organising activities outside school premises on weekends and public holidays[4].

8.  The indecent assault in Count 2 took place on 17 December 2017, after a school Christmas party. The applicant took X to the school rooftop, where he touched her breasts over her clothes and then under her clothes. He took off her top, touching her breasts and buttocks. He forcibly pulled her trousers and underpants down to her knees and touched her vagina with his hands. This went on for about half an hour. The applicant also grabbed X’s hands to touch his private parts beneath his clothing until he ejaculated on her hand. According to X, during the assault, she told the applicant that she felt uncomfortable two or three times, but he carried on nevertheless. She also felt disgusted by him touching her[5].

9.  The attempted rape in Count 4 and the rape in Count 8 were committed on 4 April 2018 in a rooftop flat of a building in Kwai Chung. The flat was occupied by another social worker at the school, who was on an overseas holiday at the time. The applicant had an electronic key card to the flat because he had helped his fellow social worker move into the premises. She did not know if anyone had access to the flat while she was away. The applicant only returned the key card to her after he resigned from the school[6]. The applicant had asked X out, and they met at around 12:30 pm on 4 April 2018. He took X to have some Japanese food, after which he took her to the flat. X did not want to go but she feared the applicant would kill her by squeezing her neck[7]. In the flat, the applicant pushed X into a room where he licked X’s lower part and breasts and stroked her breasts and buttocks. He kissed X on the mouth with his tongue. Both of them were undressed. X tried to keep her legs closed, but the applicant prized them open. The applicant tried to penetrate X without a condom but could not. That was the attempted rape in Count 4[8]. Then the applicant put on a condom, rubbed lubricant (which he had previously brought to the flat[9]) onto X’s vagina and penetrated her. The applicant penetrated X three times, and each time, he changed into a new condom to ensure it did not break[10]. Eventually, he ejaculated into a condom. X was in pain and saw she was bleeding. X told the applicant she was in pain, but he was not bothered. A subsequent medical examination confirmed that X’s hymen had been torn. She tried to resist the applicant, but he persevered against her will. She said that when she had tried to escape, the applicant would not let her leave and blocked her way using his body[11]. X likened herself to a sex doll. After she was raped, X took a shower inside the flat. He then took her for a coffee. X told the applicant again of her pain, but he merely told her to have a bath and sent her home in a taxi[12].

10.  The following day, on 5 April 2018, X went to Guangzhou with her family to participate in the Ching Ming Festival. On the way back, X had a fever and complained to her father and sisters that she had been in great pain all day. X was barely able to walk and had lost her voice. After the family returned home, X’s sisters asked their mother to examine X. X’s mother found redness around X’s vagina and asked if she had a hygiene problem. X was frightened and would not say anything[13].

11.  The indecent assault in Count 10 took place on 6 April 2018. X’s private parts were still hurting from the rape two days previously. X took part in a flag-selling activity arranged by the school. The applicant rang her to ask how she was, and X replied that she was all right. After the activity, she was taken back to school. The applicant met X and drove her to a car park at the Gold Coast, Tuen Mun. He hugged and kissed X, touching her private parts over her clothes for about half an hour. He then took her to an Italian restaurant[14].

12.  The indecent assault in Count 11 took place on 9 May 2018 at Tsuen Wan Park. After school finished that day, X went to an MTR station to meet the applicant. They went for afternoon tea, during which X’s mother telephoned X and requested her to visit Nina Wang Tower in Tsuen Wan West to help with a job. The applicant overheard the conversation, but he wanted her to meet him afterwards. He hit her head and pulled her schoolbag. X tried to leave alone, but the applicant followed her to the MTR and onto the train. The applicant squeezed X’s neck and forced X to meet again afterwards. Having run the errand, X came out of Nina Tower and saw the applicant waiting for her. Despite X’s unwillingness, they went to Tsuen Wan Park and sat on a bench, where the applicant hugged and kissed her. He pressed his tongue into her mouth and stroked her private parts and buttocks over her school uniform. He took X’s hands to fondle his genitals over his clothes until he had an erection. X was scared and wanted to leave, but the applicant prevented her from doing so. She said “no” three times, but he carried on regardless[15].

13.  Count 14 concerned an attempted unlawful sexual intercourse with X as a MIP. On Sunday, 20 May 2018, there was to be a prize-giving ceremony, and the students were told to assemble at the school at 9 am. Before the ceremony, the applicant took X out for breakfast and then returned to the school. It was early, so nobody was there. At about 8:15 am, the applicant told X to go to the social worker’s room, where he hugged her, kissed her on the mouth, and undressed her. When both were naked, the applicant kissed her private parts and put on a condom. The applicant told X to lie on the floor and spread her legs. The applicant tried to penetrate X’s vagina but was unable to do so. He asked X to stroke his genitals, which she did, and he ejaculated into the condom. X did not say anything about being uncomfortable or scared. At around 9 am, when X came out of the social worker’s room, she saw her class teacher, who later asked her what she and the applicant had been doing. X felt embarrassed and said she had only chatted and helped. Her teacher did not believe her[16].

14.  The same afternoon, after the ceremony, X returned to the school and saw the applicant in the social worker’s room, where he inserted two fingers into her vagina, touched her breasts, and “rubbed her bum”. She described his penis touching her belly and the applicant pulling her pants halfway down against her wishes[17]. This incident was the indecent assault in Count 15.

15.  The indecent assaults in Counts 16 to 19 took place on 9 June 2018. At about 9 am, with their clothes on, the applicant hugged and cuddled X in the social worker’s room. This incident was Count 16. After an afternoon school activity at Lai King, the applicant drove X to Tuen Mun for lunch. Before the meal, in his car, with X’s underpants pulled down, the applicant inserted his fingers into her vagina, touching her breasts and buttocks. Although X said “no”, he continued. This incident was Count 17. After lunch, they returned to the applicant’s car and sat in the backseat. The applicant put his fingers into X’s vagina. Two security guards walked past and must have seen something as they told the applicant and X to leave, which they did. This indecent assault was Count 18. The applicant then drove X to Tai Lam Country Park where, having stopped his car, he again put his fingers into X’s private parts, touching her buttocks and breasts. He stopped abruptly when some government vehicles drove by, and X said she heard one of the men in the vehicles say “wow” as they passed. This incident was Count 19[18].

16.  The applicant told X not to say anything to anyone about the assaults. She did as she was told because she was scared of the applicant[19]. X’s mother observed that X had become emotionally unstable from June 2018 onwards. X would often lose her temper badly and start shouting. X’s mother asked X to confide in her, but X would not say anything. X’s mother found that the applicant had gifted X a knapsack. On 13 June 2018, X was very emotional, and she had to stay in a hostel until 16 June, she telephoned home all the time, begging to come home. When X was at the hostel, her mother found X’s telephone and was shocked by the conversations she read between her daughter and the applicant[20].

17.  In her evidence, X spoke of the applicant giving her small gifts (a camouflage cap, bottles of shower gel, whistles and a schoolbag) and even sums of money totalling about $8,000. X initially declined to take the money, but the applicant insisted on giving it to her[21].

18.  On 12 June 2018, X’s mother telephoned the female social worker to demand that X be stopped from going on any further school activities. The social worker asked the applicant whether he was going out for meals with X. The applicant told her that X, having overheard him and another male student talking about seeing a movie and insisting on coming along, had a meal with him alone as the male student could not come. The applicant also said that X’s parents had been informed of this. The social worker told the applicant that it was inappropriate of him to have taken X out[22].

19.  On 13 June 2018, the school principal spoke to the applicant about his communications with X. The applicant told the principal that he felt X had trouble getting along with her family, and that he cared for her. The principal reminded the applicant that it was not appropriate for the applicant to contact X alone. On 25 and 26 June 2018, the principal spoke again to the applicant, wanting to know if there had been any further communication between the applicant and X. The applicant first denied any further contact on those occasions, but when pressed, he admitted that there had been, but said they were initiated by X. On 27 June 2018, the principal again confronted the applicant, showing a WhatsApp message from the applicant on X’s telephone, which the principal found shocking. The applicant justified it by saying it was his way of caring for X. The applicant tendered his resignation to the school on the same day[23].

20.  On 18 July 2018, X finally told her mother about the sexual abuse by the applicant. Her mother was very distressed on hearing X’s account[24].

21.  At the time of the trial, X was working as a trainee chef and, according to her mother, was doing all right[25].

The sentence

22.  In mitigation, it was stressed that the applicant had been a man of good character and had devoted his service to the school. The applicant accepted that the principles in R v Billam[26]applied. The judge was invited to treat Counts 4 and 8 as one transaction because both were committed on the same day. It was urged on the judge to have regard to totality when sentencing the applicant on the other counts, even though they were separate acts[27].

23.  The judge stated that the offences for which the applicant was convicted were committed in a period of about 6 months (between 17 December 2017 and 9 June 2018) when X was 16 years old and had a mild intellectual disability and mild autism. He observed that the applicant targeted X for sexual exploitation, taking advantage of his position in the school and of having charge of organising outside school activities. He remarked that there was overwhelming evidence for the jury to find that the applicant was a sexual predator.

24.  The judge emphasised that X was in very considerable physical pain after being raped, barely able to walk and having lost her voice. Only two days later, the applicant indecently assaulted her again and subsequently in different places. On one occasion, the applicant attempted sexual intercourse with X, whom he knew to be a MIP (Count 13). The applicant told X not to say anything to anyone, but X’s behavioural problem soon became evident. He had no doubt that the horrors X had to endure at the applicant’s hands would continue to haunt her for the rest of her life, and no victim impact statement was necessary in this case.

25.  The judge found that the applicant had not shown any remorse for what he had done to X, taking advantage of a girl over whom he was able to exercise control. The applicant had become a “sexual predator” of “his monstrous behaviour”. He took note of the psychiatrist’s evidence where it was said that X, being autistic, often did what people in authority told her to do and thus became easy prey for the fulfilment of the applicant’s sexual desires. He said that each of the offences the applicant committed represented “a terrible breach of trust”[28].

26.  The judge sentenced the applicant as follows[29]:

Particulars of offence and date	Sentence	Sentencing order
Count 8, Rape, 4 April 2018	10 years
Count 4, Attempted rape, 4 April 2018	5 years	To run wholly concurrently to Count 8.
Count 14, Attempted unlawful sexual intercourse with a mentally incapacitated person, 20 May 2018	5 years	3 years of which to run consecutively to Counts 8 and 4.
Count 2, Indecent assault, 17 December 2017	3 years	1 year of which to run consecutively to Counts 8, 4 and 14.
Count 10, Indecent assault, 6 April 2018	1 year	Counts 10, 11 and 16 to run wholly concurrently among themselves and with all other counts.
Count 11, Indecent assault, 9 May 2018	1 year
Count 16, Indecent assault, 9 June 2018	9 months
Count 15, Indecent assault, 20 May 2018	2 years	Counts 15, 17, 18 and 19 to run wholly concurrently among themselves, and 1 year of that to run consecutively to all other counts.
Count 17, Indecent assault, 9 June, 2018	2 years
Count 18, Indecent assault, 9 June 2018	2 years
Count 19, Indecent assault, 9 June 2018	2 years
Total sentence		15 years

Procedural history of the abandonment

27.  It is appropriate to set out in greater detail the procedural history of this case. At trial, the applicant was represented by Mr Andrew Bruce, SC, and Ms Denise Souza, who were instructed by Messrs Francis Kong & Co.

28.  After the applicant was convicted and sentenced, he filed a notice to appeal for leave to appeal against conviction and sentence on 13 December 2019. At that stage, his legal representatives continued to act for him. On 9 March 2020, only Perfected Grounds of Appeal (PGAs) in respect of conviction were filed, which had been signed by counsel, including the late Mr Gerard McCoy, SC.

29.  On 6 April 2020, the court directed that the applicant file PGAs in respect of sentence within 14 days. In a letter dated 20 April 2020, Messrs Francis Kong & Co informed the court that the applicant “shall abandon the appeal against sentence and accordingly no PGA for appeal against sentence shall be filed” but asked for 7 days to obtain the written confirmation from the applicant on the matter.

30.  In a letter dated 27 April 2020, Messrs Francis Kong & Co confirmed that the applicant had abandoned his appeal against sentence. As a result, the court directed that the applicant file a Notice of Abandonment without delay and that upon receipt of the notice, his appeal against sentence would be deemed dismissed.

31.  On 1 June 2020, a Notice of Abandonment against sentence was filed by Messrs Francis Kong & Co, which was signed by the applicant and witnessed by Mr Kong Tak Yuen, the solicitor. In a letter of the same date, the court acknowledged receipt of the notice and informed Messrs Francis Kong & Co that the application for leave to appeal against sentence was marked and deemed to have been dismissed pursuant to rule 39 of the Criminal Appeal Rules (Cap 221A).

32.  The application for leave to appeal against conviction proceeded to a hearing on 5 January 2021 before the Court of Appeal, which handed down its judgment on 17 December 2021. The Court granted leave to appeal against conviction but dismissed the appeal[30].

33.  On 10 January 2022, on behalf of the applicant, a Notice of Change of Solicitors was filed, stating that the applicant instructed Messrs Fan Wong & Tso in his application for leave to appeal against sentence. In a letter dated 14 January 2022, the court noted that the applicant had abandoned his leave application against sentence and that if he wished to pursue the application, he had first to seek leave to treat the abandonment as a nullity. However, it was not until 27 June 2022 that Messrs Fan, Wong & Tso wrote to the court that they had been instructed to represent the applicant to apply to treat the abandonment as a nullity. In a letter to the solicitors date 11 July 2022, the court directed:

“(a) Current solicitors for the applicant should file affirmation(s)/affidavit(s) for the purpose of establishing that the applicant’s earlier abandonment was not the result of a deliberate and informed decision.

(b) In light of the fact that the Notice of Abandonment was interpreted and signed by Mr Kong Tak Yuen, solicitor of Messrs Francis Kong & Co, in the capacity of a witness, current solicitors should make enquiries of him as to what transpired at the time of abandonment with sufficient details set out in his affirmation/affidavit to be filed.”

34.  On 13 July 2022, the applicant filed an affirmation dated 20 June 2022 as to the circumstances of his abandonment of the sentence appeal.

35.  Subsequently, counsel for the applicant filed PGAs in respect of sentence and written submissions without addressing why the abandonment was a nullity.

The applicant’s account regarding the abandonment

36.  In his affirmation dated 20 June 2022, the applicant stated that the legal advice given by his counsel had misled him and that he had not been informed, either orally or by the note on the Notice of Abandonment, that he would not be able to appeal against sentence again upon the abandonment.

37.  The applicant provided the following account of the circumstances that led him to file the Notice of Abandonment. After the judge sentenced him on 21 November 2019, the applicant was immediately visited by Mr Bruce and Mr Kong of Messrs Francis Kong & Co. Mr Bruce told him that the total sentence of 15 years’ imprisonment was too high and there was a chance of success in an appeal against sentence, as well as a chance of success in an appeal against conviction.

38.  On 29 November 2019, Mr Kong went to Stanley Prison to ask the applicant to sign some documents to launch an appeal. The applicant proposed to retain an additional Senior Counsel and suggested Mr McCoy.

39.  As already noted, a notice of appeal in relation to both conviction and sentence was filed on the applicant’s behalf on 13 December 2019. The PGAs in respect of conviction were settled by Mr Bruce, Mr McCoy and Ms Souza on 7 February 2020 and filed on 9 March 2020.

40.  According to the applicant, Mr Kong discussed the prospect of his appeal with him and conveyed to him the advice of Mr Bruce and Mr McCoy. He stated[31]:

“9. On 12^th February 2020, Mr. Kong came to Stanley Prison and told me that Mr. Bruce SC and Mr. McCoy SC had discussed about my appeal against conviction and sentence, and both agreed that the prospect for the court to allow the appeal against conviction was very high and it was highly likely for the court to order a retrial. Mr. Kong also said that the jury was given wrong directions by the trial judge and the trial judge was bias. Therefore, I should continue with that appeal. Even if that appeal was unsuccessful, the sentence would not be enhanced. However, as far as the appeal against sentence was concerned, both agreed that I should abandon it, because not only it would be bound to fail but also the sentence would be increased by the court. As Mr. Bruce SC and Mr. McCoy SC were both very senior and reputable barristers, I genuinely and firmly believed in their professional advice that my sentence would be increased if the appeal against sentence was not abandoned. Since I did not want my sentence to increase, I followed their advice in abandoning the appeal against sentence. However, on 12^th February 2020, Mr. Kong did not give me the Notice of Abandonment to sign and did not inform me that only the perfected grounds of appeal against conviction had been filed on 7^th February 2020 and no grounds of appeal against sentence have been filed.” (Emphasis added)

41.  We observe from the above passage that the applicant acknowledged he received legal advice from two Senior Counsel on the prospects of success of an appeal against sentence, and as a result, he abandoned his sentence appeal. The applicant went on to state[32]:

“On 23^rd April 2020, Mr. Kong came to Stanley Prison and said he had received an email from Mr. Bruce SC confirming that Mr. Bruce SC advised me to abandon the appeal against sentence. Mr. Kong then gave me the Notice of Abandonment to sign. However, the Notice of Abandonment only consisted of the first 2 pages. The date on the second page was not filled in and the amendment to the words ‘a Judge’ was not there. Most importantly, when I signed on the Notice of Abandonment, the note about rule 39 of the Criminal Appeal Rules was not there (‘the Note’), and Mr. Kong did not tell me once I signed it I could not appeal against the sentence again unless the abandonment is treated as a nullity. Had I known I could not have appealed against the sentence again, I would not have signed it yet. Instead I would have sought advice from another lawyer first. …” (Emphasis added)

42.  It is noted that the Notice of Abandonment was dated 8 May 2020 and filed on 1 June 2020. We note that the applicant’s signature was appended on the second page of the notice, with the note about rule 39 on the third page. However, the body of the notice made it abundantly clear that the applicant was abandoning his sentence appeal, which had also been witnessed and interpreted by Mr Kong.

43.  In August 2020, by video conferencing, Mr Bruce told the applicant that there were sufficient grounds for the court to allow the appeal against conviction.

44.  On 5 January 2021, the Court of Appeal heard the application for leave to appeal against conviction. At the hearing, the following exchange between Macrae VP and Mr Bruce occurred:

“Macrae VP: Mr Bruce, just before we begin …

Mr. Bruce: Yes.

Macrae VP: …the applicant filed a notice of abandonment of his sentence on 8 May 2020.

Mr. Bruce: Yes.

Macrae VP: Were you by that stage instructed?

Mr. Bruce: Yes, and I rendered advice on it.

Macrae VP: And was that done with your approval that abandonment?

Mr. Bruce: It was done on my advice.

Macrae VP: Because it does seem that the most important or the most serious offence was the rape …

Mr. Bruce: Yes.

Macrae VP: … followed by the attempted unlawful sexual intercourse with a mentally incapacitated person.

Mr. Bruce: Yes.

Macrae VP: All right, well, you gave an oral or a written advice.

Mr. Bruce: I cannot now remember but it was certainly my -- it was my advice. I think it was written but I cannot now remember.

Macrae VP: No. The reason I ask is obviously you have had to look at the authorities. It does perhaps strike one without going into the facts as quite a high sentence, that’s all.

Mr. Bruce: Yes. Well, I am not instructed to make any application to counter the act of the applicant in this matter.

Macrae VP: All right.”

45.  The applicant commented on this exchange in his affirmation[33]:

“14. After the appeal hearing, I thought about the above conversation between Hon Macrae VP and Mr. Bruce SC. I began to think that Mr. Bruce SC and Mr. McCoy SC might have been wrong to advise me that my sentence would be increased if the appeal against sentence was not abandoned.

15. Therefore, I requested Mr. Kong to see me at Stanley Prison. At the meeting in or around February 2021, I said to Mr. Kong that a judge at the hearing of the appeal said my sentence was high and Mr. Bruce SC and Mr. McCoy SC might have been wrong to advise me that my sentence would be increased if the appeal against sentence was not abandoned. In reply, Mr. Kong said, in any event, the time limit for the appeal against sentence had expired and it had also been abandoned, so I could not apply to reopen the appeal against sentence again. He said I could only wait for the decision of the appeal against conviction then.”

46.  On 17 December 2021, the Court of Appeal dismissed the appeal against conviction. According to the applicant, a few days later, Mr Kong came to Stanley Prison to say he disagreed with the two Senior Counsel that the appeal against sentence should be abandoned, but because he had good relations with counsel, he had not wanted to express his disagreement[34].

47.  According to the applicant, Mr Kong came to see him again around the end of December 2021 and told him that he should appeal to the Court of Final Appeal against his convictions. As to appealing his sentence, Mr Kong suggested not to change his legal team to avoid wasting time perusing case papers by another legal team and that he would discuss the matter with Mr Bruce[35]. However, on 7 January 2022, the applicant retained a new legal team to handle his case.

48.  Neither Mr Bruce nor Mr Kong has been invited to reply to the applicant’s allegations. On 8 July 2022, the court directed Messrs Fan Wong & Tso to enquire with Mr Kong about the allegations, but this was not done.

Submissions on the nullity application

49.  Mr Ronny Leung, representing the applicant, submitted that the abandonment is a nullity because (1) the applicant was under the mistaken belief that his sentence could be increased if he proceeded with his sentence appeal; and (2) that he was given wrong advice from his legal representatives that he was told his sentence could be increased, and that he was not told that he could not reapply to appeal his sentence once he signed the Notice of Abandonment.

50.  Mr Derek Lai, representing the respondent, submitted that the applicant failed to show that the abandonment was not a deliberate and informed decision because his account of being misled by the legal advice of two Senior Counsel lacked credibility. He pointed out that the applicant did not produce any document to support his allegations against the legal representatives. He also noted that, on the record page of the notice of abandonment as signed by the applicant, there were the words, “I abandon all further proceedings in regard thereto the appeal against sentence”. He submitted that the applicant, who is well educated, would have carefully read and understood the document he had signed.

51.  Mr Lai further added that the application should be rejected because no enquiries were made by Mr Bruce and Mr Kong regarding the applicant’s allegations.

Discussion

52.  An applicant who has abandoned an application for leave to appeal may apply to restore the application, but he has to show that the abandonment was a nullity because it was not the result of a deliberate and informed decision. In other words, he did not intend to abandon the appeal or did not understand the nature or effect of signing the Notice of Abandonment such that his mind did not go with the act of abandonment. When determining a nullity application, it follows that the appellate court is not concerned with the merits of the appeal but whether the applicant knew the nature and effect of the Notice of Abandonment that he or she signed[36].

53.  In HKSAR v Lai Siu Cheung[37], the Court of Appeal examined the jurisdictional basis of a nullity application and the approach to be taken when determining such an application. It was held that the right of appeal is conferred by statute, and once an appeal is abandoned and therefore dismissed, the Court of Appeal is functus officio and has no inherent jurisdiction to permit an appeal to be reopened[38]. The only circumstance in which an abandoned appeal can be restored is if the abandonment is in law a nullity, in that the abandonment can properly be treated as if it had never occurred, or if the Chief Executive, pursuant to section 83P of the Criminal Procedure Ordinance, refers the case to the Court of Appeal[39].

54.  The Court in Lai Siu Cheung observed that whilst the Court of Appeal is functus officio upon a valid abandonment of an appeal, it does not leave the applicant, who might have been the subject of a miscarriage of justice, without remedy, as section 83P provided such a remedy in appropriate cases[40].

55.  In HKSAR v Chang Wai Hang Alab[41], the Court of Appeal set out the following principles that apply to an application to treat an abandonment as a nullity:

“(1) Once an appeal has been dismissed, the Court of Appeal is functus officio. It does not have inherent jurisdiction to hear an appeal that has been dismissed. To do so would require statutory authorisation and for that none exists, save the power conferred by s.83P.

(2) Therefore, the Court of Appeal no longer has jurisdiction to deal with the appeal once it has been abandoned, and therefore dismissed.

(3) If an applicant applies to the Court of Appeal to restore the hearing of his appeal that has been abandoned and therefore dismissed, he must prove that as a matter of law, his abandonment may properly be treated as if it had never occurred, that is his abandonment was in law a nullity. It is only then that leave may be granted to the application. This is the only situation where the Court of Appeal may restore the hearing of an appeal that has been dismissed due to abandonment.

(4) The only test to establish that an appellant’s act of abandoning the appeal is a nullity is that the court must be satisfied that the abandonment was not the result of a deliberate and informed decision, in other words, the appellant's mind did not go with the act of abandonment.

(5) Whether the abandonment may be treated as a nullity concerns the applicant’s understanding of the effect or consequences of the document he is signing or, perhaps, misapprehending the effect at law of an appeal were he to persist. An appellant who, properly informed, knows what the document is that he is signing and the effect of it and, with that knowledge, deliberately signs the Notice of Abandonment of Appeal, may not satisfy the court that his act of abandonment is a nullity.

(6) If an applicant relies on the ground of having been given wrong advice to support his application:

(i) If the wrong advice he relied on goes to the nature or effect of the act of abandonment, then the Notice of Abandonment may be treated as a nullity.

(ii) If he signed the Notice of Abandonment of Appeal under the influence of the wrong legal advice he was given about the prospects of success on his appeal, the Court of Appeal may not treat the Notice as a nullity as it was wrong advice regarding the merits of the appeal which does not go to the signing of the Notice of Abandonment or its nature or effect.”

56.  Where the nullity application is based on an allegation of wrong advice, the Court in Chang Wai Hang Alab explained[42]:

“39. … if an applicant gave up an appeal because he was misled by wrong advice that caused him to misunderstand the consequence of insisting on pursuing the appeal, although his act of signing the Notice of Abandonment was deliberate, in the eyes of the law, he did not do it knowingly. When an appellant was misled by wrong advice into believing that his sentence may be affected if he insisted on pursuing the appeal, this principle is also applicable. The Court may treat the abandonment of the appeal as a nullity: see R v Johnson, the other Australian case referred to in R v Bridges; R v Keating and R v Maxim Julian Bellos.”

57.  It is fundamental that an applicant who has abandoned an appeal has caused the appeal process to be brought to an end, and hence the abandonment operates as a dismissal of the appeal. It means that there is no longer any proceeding extant before the Court of Appeal, and therefore, it does not have jurisdiction in respect of the abandoned appeal. In order to restore an abandoned appeal, the applicant first needs to establish that the Court has jurisdiction by finding that the abandonment was a nullity for it to consider the merits of any application. For this reason, the Court does not engage in addressing the merits of the application for leave to appeal. This point was succinctly explained by Ma CJHC (as he then was) in HKSAR v Law Kam Fai[43]as follows:

“44. … The court does not inquire into the merits of the actual application for leave to appeal at all; nor should it until the said test has been satisfied. In other words, the outcome of an application to treat the abandonment as a nullity does not depend on the validity or cogency of the underlying application whose abandonment is sought to be nullified. How good or bad the underlying application for leave to appeal against conviction or sentence may be, this is irrelevant. …

45. The situations in which the court will or will not treat an abandonment as a nullity are too numerous to set out exhaustively. Of relevance in the present case is the aspect of wrong advice being given to an applicant. Where wrong advice is given regarding the merits of an appeal, this will generally not be sufficient: see HKSAR v Lai Siu Cheung [2005] 1 HKLRD 1 at paras.26-28. In such a situation, in signing a notice of abandonment, an applicant knows exactly what he or she is doing: he knows he has a possible appeal to the Court of Appeal and he is expressly abandoning that possibility. Whether or not that possibility is a good one (in other words, the prospects on appeal) is not relevant: he still realizes he has that possibility. On the other hand, where wrong advice is given going to the nature or effect of an act of abandonment, the position may be quite different since the act of abandonment may on analysis not have been a voluntary one at all, or it had an effect of which he was unaware: see HKSAR v Lai Siu Cheung at para.26 (at p.12C-F). In most cases, however, without more, a person can be taken to realize that when he is signing a notice of abandonment, he is doing just that.” (Emphasis added)

58.  As already noted, when determining a nullity application, the key consideration is whether the applicant was aware of the nature and effect of the Notice of Abandonment that he or she signed. There might conceivably be circumstances where wrong advice has been given going to the nature and effect of the act of abandonment, but it would need to be shown that the applicant signed the document involuntarily and was unaware of its effect.

59.  In Law Kam Fai, the applicant claimed that he abandoned his appeal against sentence because he was under a mistaken belief, as a result of comments made by his family members and inmates, that if he failed in his sentence appeal, it would inevitably attract an increase of sentence. The Court of Appeal proceeded to analyse the claim, assuming that such mistaken belief might form the basis of an application to treat an abandonment as a nullity[44]. The Court held that such belief could not be made out, finding that the applicant’s evidence was far from satisfactory and went nowhere near satisfying the requisite test, based on comments from family and friends and notably not from lawyers.

60.  The signing of a Notice of Abandonment is an important and significant act in the appeal process and is not something that should or would be done lightly. Such an act is, therefore, a critical factor when determining whether the abandonment was a nullity. Kwan JA emphasised this in HKSAR v Ip Wai Ho Micky[45], where she said:

“24. The starting point for the court will be that in most cases, persons signing an important legal document by which they throw away their possible right of appeal will be taken to be aware of what they are doing (Ooi Lim Khoon, at [16]). As stated in Lai Siu Cheung, at [28]: ‘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.’ And in Law Kam Fai, at [45]: ‘In most cases, however, without more, a person can be taken to realise that when he is signing a notice of abandonment, he is doing just that.’”

61.  It is noted that the applicant filed his application for leave to appeal against conviction and sentence on 13 December 2019, but the sentence appeal was abandoned by him on 1 June 2020, with previous notice of his intention to do so having been given by his solicitors on 20 and 27 April 2020. It was not until 13 July 2022 that he filed an affirmation dated 20 June 2022, in which he applied to treat the abandonment as a nullity. This was after this Court dismissed his appeal against conviction, having granted him leave, which was heard on 5 January 2021, with judgment handed down on 17 December 2021.

62.  We are not persuaded that the applicant was unaware of the consequences of signing the abandonment, nor of the additional note in the notice regarding rule 39 of the Criminal Appeal Rules, which stated: 

“2. Under rule 39, on receipt by the Registrar of your notice of abandonment, your appeal is deemed to have been dismissed. The Court of Appeal has no inherent jurisdiction to permit your appeal to be reopened unless –

(a) your abandonment of the appeal is treated as a nullity; or

(b) there is a reference to the Court of Appeal by the Chief Executive under section 83P of the Criminal Procedure Ordinance (Cap. 221)

3. Only in exceptional circumstances, where the Court is satisfied that the abandonment was not the result of a deliberate and informed decision, will the Court treat the abandonment as a nullity.”

63.  Signing the abandonment, put the applicant on notice that the Court of Appeal would no longer have jurisdiction to deal with his appeal unless it could be shown that his abandonment was a nullity. He was also informed that that would only occur in exceptional circumstances where the Court was satisfied that the abandonment was not due to a deliberate and informed decision.

64.  It, therefore, falls on the applicant to persuade the Court by credible evidence of facts that despite signing the Notice of Abandonment as he did, he did not intend to abandon the appeal or did not understand the nature or effect of signing the notice such that his mind could not be said to have gone with the act of abandonment.

65.  Mr Leung accepted that Mr Bruce advised the applicant to initiate the sentence appeal but subsequently advised him to abandon it. Mr Bruce confirmed in open court that he had advised the applicant not to proceed with the sentence appeal[46]. It would seem reasonable that Mr Bruce, on further consideration of the applicant’s case, would have given such advice. However, we think it would be unlikely that Mr Bruce, having initially advised the applicant to appeal his sentence because it was manifestly excessive, would advise him that his sentence would be increased if the appeal was pursued. But even if he did, the applicant still signed the Notice of Abandonment, understanding the nature and effect of it.

66.  The issue of the applicant’s abandonment of his sentence appeal was a matter that was obviously discussed with him over a period of time, and it was not until his instructions were confirmed that he would abandon his sentence appeal that his solicitors wrote to the Court of his decision. As already noted, on 20 April 2020, the applicant’s solicitors wrote to the Court stating that the applicant would abandon his sentence appeal but asked for 7 days to obtain written confirmation from the applicant on the matter. Only after that was done on 27 April 2020, did the solicitors confirm that the applicant would abandon his sentence appeal and that no perfected grounds of appeal against sentence would be filed.

67.  We are not persuaded that the applicant did not fully appreciate and understand that when he signed the Notice of Abandonment of his sentence appeal, he was terminating the proceedings to appeal his sentence. He is an educated person who would have understood the contents and significance of legal documents he was required to sign regarding his appeal. We are satisfied that he must have known what he was doing when he signed the abandonment. He also had a very experienced legal team to represent him both at trial and in his appeal, and it is apparent that throughout this process, he was fully and constantly advised about his appeal against conviction and sentence. The applicant’s act of signing the abandonment followed the provision of legal advice regarding the prospects of success in appealing his sentence. As we have already noted, the matter was raised and discussed at the beginning of the appeal hearing, and it was reconfirmed in open court that the applicant did not wish to pursue his sentence appeal.

68.  We are not satisfied with the applicant’s evidence that he did not understand that he was terminating his sentence appeal for good and that he signed the Notice of Abandonment because he was wrongly advised that his sentence would be increased or he was not advised that he could not appeal against the sentence again.

69.  It follows from what we have said that the application to treat the abandonment as a nullity is refused.

Leave to appeal against sentence

70.  Whilst we do not grant the nullity application, it was initially intimated that the sentence might be on the high side. For this reason, we indicate that we would have refused the applicant leave to appeal against his sentence. In our view, the sentence imposed on the applicant was neither manifestly excessive nor wrong in principle.

The applicant’s submissions

71.  Mr Leung put forward three grounds of appeal against sentence.

72.  By Ground 1, it was complained that the starting point of 10 years’ imprisonment imposed on the rape in Count 8 was manifestly excessive. Mr Leung stated that, although the judge did not attribute the aggravating features to each count, the starting point in all the circumstances of Count 8 was manifestly excessive, compared with HKSAR v Leung Chung Kin Bunny[47]. In that case, the appellant, an employee at an institution serving mentally incapacitated persons, committed two counts of rape and one count of indecent assault against the victim in similar circumstances to the present case, where there was a serious breach of trust. The judge, in that case, adopted a starting point of 5 years’ imprisonment, which he enhanced by 3 years for the aggravating features of a serious breach of trust, the victim being a MIP and the impact upon the victim, for each count of rape. Mr Leung, therefore, suggested that the starting point in the present case should have been 8 years’ imprisonment.

73.  By Ground 2, it was said that the starting point of 5 years’ imprisonment for the attempted unlawful sexual intercourse with a MIP in Count 14 was manifestly excessive because in similar cases, defendants have received considerably lower sentences for the same offence[48].

74.  By Ground 3, it was submitted that the overall sentence of 15 years’ imprisonment was manifestly excessive. Mr Leung submitted that this term of imprisonment was usual for cases of far more serious criminality[49]. He advocated that as the sentence for the rape should have been 8 years’ imprisonment, a total term of imprisonment of 13 years was a more appropriate sentence.

The respondent’s submissions

75.  Mr Lai submitted that the essential question in this application was the third ground as to whether the overall sentence of 15 years’ imprisonment for all the counts was manifestly excessive. He argued it was a severe sentence, but a proper one in all the circumstances of the case.

76.  Mr Lai cited R v Tsang Chiu Tak[50], where the Court of Appeal set out relevant sentencing considerations when dealing with sexual assaults on a child, to which the sentencing court may have regard in cases of sexual violation of a MIP[51]. He also relied on HKSAR v Li Fat Sang[52] and HKSAR Lau Chin Yu[53] to demonstrate that this Court viewed sexual assaults upon young MIPs as requiring severe punishment because of the need to protect vulnerable children.

77.  In the present case, Mr Lai submitted that there were numerous aggravating features. The offences involved a serious breach of trust by the applicant as he repeatedly exploited his position as a social worker with the care and responsibility of X, who was highly vulnerable and susceptible to abuse. The applicant committed a series of sexual assaults on ten separate occasions within six months. These assaults occurred while under the applicant’s care at school, where X was supposed to feel safe and protected; in the flat, which was a strange place to X; and inside the applicant’s car in various locations. The applicant threatened and physically assaulted X in committing some of the offences. In committing the attempted rape in Count 4, the applicant did not wear a condom. The offences caused considerable physical and psychological harm to X and traumatised her and her family, as revealed by X’s mother’s evidence.

78.  Mr Lai submitted that the starting point of 10 years’ imprisonment for the rape in Count 8 was not manifestly excessive. Mr Lai pointed out that this sentence was ordered to run wholly concurrently with the 5 years’ imprisonment for the attempted rape in Count 4, which was aggravated by the applicant not wearing a condom and was a separate and distinct sexual assault on X. He also submitted that the judge was correct to say the applicant had not shown any remorse as he had required X and her mother to relive the traumatic events in court.

Discussion

79.  What makes this an extremely serious case of sexual abuse is the nature, circumstances and repetition of the sexual assaults by the applicant on the victim; the age and vulnerability of the victim; the grave breach of trust perpetrated by the applicant; and the pernicious grooming and intimidation carried out by the applicant on the victim.

80.  In Tsang Chiu Tak, the Court of Appeal upheld the overall sentence of 12 years’ imprisonment for two offences of rape, in which the applicant raped his girlfriend’s 15-year-old daughter on two occasions within several days.

81.  Cheung CJHC (as the Chief Justice then was), giving the judgment of the Court, in Tsang Chiu Tak, reiterated that the courts had to protect innocent trusting children and prevent these vulnerable persons from sexual abuse, which would cause physical and psychological trauma. He said that in cases involving sexual assault on a child, the courts needed to adopt deterrence sentences to deter others from committing similar offences and that such deterrence sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families[54].

82.  Cheung CJHC explained that when courts deal with offences of sexual assault on a child, the factors that need to be taken into consideration included: (a) the age difference between the defendant and the victim; (b) the relationship between the defendant and the victim and whether the defendant had taken advantage of his position or status and whether the offence involved a breach of trust; (c) whether the defendant had used threats or inducements to make the victim succumb; (d) the number of occasions of committing the offences and the duration of them; (e) whether violence was used by the defendant on the victim; (f) whether the defendant took any safety precautions; (g) whether the abuse had caused physical or psychological trauma to the victim; (h) whether the offence had any impact on the victim’s family members; (i) whether the defendant was involved in other inappropriate conduct or behaviour in committing the offence, such as inviting others to watch or film the offending conduct; and (j) whether the defendant is paedophilic or mentally disturbed and likely to reoffend[55].

83.  The attempted rape in Count 4 and the rape in Count 8 were committed successively by the applicant on X in the rooftop flat where he had previously arranged to take X to sexually abuse her. After attempting sexual intercourse with X without a condom, he eventually used no less than three condoms because he penetrated her so often[56]. The judge sentenced the applicant to concurrent terms of imprisonment of 10 years for the rape and 5 years for the attempted rape. Whilst the sentence for the rape may seem to be on the high side, the circumstances of the attempted rape and the applicant’s overall conduct would have justified a sentence for these two offences of 10 years’ imprisonment, which was the resultant sentence imposed by the judge.

84.  Soon after committing these two offences, the applicant attempted sexual intercourse with X in Count 14 on 20 May 2018. Before a school event on a Sunday, the applicant took X to his room, where he undressed her and attempted to have sex with her. The judge sentenced him to 5 years’ imprisonment for the offence, which was an appropriate punishment for the sexual indignities and abuse to which he had subjected X.

85.  Between April and June 2018, the applicant committed seven indecent assaults on X, with four of them having taken place on 9 June 2018. The judge sentenced the applicant to terms of imprisonment, ranging from 9 months to 2 years for these offences in Counts 10, 11, 15 to 19.

86.  There had been the initial indecent assault on X in Count 2 on 17 December 2017, for which the judge sentenced the applicant to 3 years’ imprisonment. This incident was a particularly bad indecent assault which was the precursor to the repeated and increasing sexual exploitation and abuse of X by the applicant.

87.  The judge made 3 years of the sentence in Count 14, one year of the sentence in Count 2, and one year of the sentences in Counts 10, 11, 15 to 19, consecutive to the sentence of 10 years’ imprisonment on Counts 4 and 8. This resulted in a total sentence of 15 years’ imprisonment.

88.  The sentence imposed on the applicant is high but deservedly so. The applicant’s case was a grotesque sexual attack on a highly vulnerable young girl over a protracted period of time. He exploited X at every opportunity, threatening and intimidating her to succumb to his sexual desires. X and her family have suffered from horrific trauma and grief due to the applicant’s sexually predatory behaviour. As the judge remarked in his sentencing reasons, this episode in X’s life will haunt her forever, “An experience of this kind will mean that her life will never quite be the same again. Her mother’s grief when she came to court to give evidence was plain for all to see, and it was very moving.”[57]

89.  The young and the vulnerable need protection from the law against sexual predators, who use manipulative and abusive methods to disempower and exploit their victims. X was unable to resist or protect herself from the repeated sexual assaults she was subjected to by the applicant, who used his position and status to take advantage of her and her situation in a calculated and callous manner.

90.  For the above reasons, we do not consider this a suitable case for reference under section 83P of the Criminal Procedure Ordinance.