HKSAR v. CHU HO YIN

CACC76/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 76 OF 2001

(ON APPEAL FROM HCCC 130 OF 2000)

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

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

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

J U D G M E N T

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

McMahon J (Giving the judgment of the Court) :

1. By way of an affidavit dated 16 January 2007, the unrepresented applicant seeks leave to treat his previous abandonment of his appeal against conviction as a nullity.

2. On 15 February 2001 the applicant was convicted in the High Court, before Beeson J and a jury, of trafficking in a large quantity of dangerous drugs and was sentenced to 18 years’ imprisonment.  He appealed that conviction and sentence, but on 3 January 2002 abandoned his appeal against sentence and, one month later, on 1 February 2002 abandoned his appeal against conviction.  Both appeals were consequently dismissed pursuant to the provisions of Rule 39 of the Criminal Appeal Rules.

3. At the applicant’s trial the judge had directed the jury on the effect of the presumptions arising pursuant to section 47 of the Dangerous Drugs Ordinance, Cap. 134 (“the Ordinance”) and had, in accordance with the accepted law and practice at that time, instructed the jury that it was a matter for the applicant to rebut those presumptions on the balance of probabilities.  That is, the judge had directed the jury that sections 47(1) and 47(2) of the Ordinance imposed legal or persuasive burdens of proof on the applicant.

4. Following the applicant’s abandonment of his appeal against conviction it became clear, as a result of the decision of the Court of Final Appeal in HKSAR v. Hung Chan Wa & Another [2006] 3 HKLRD 841, that section 47 of the Ordinance imposed on a defendant an evidential burden only.  Accordingly, it would seem plain that, other considerations aside, the applicant can point to a material misdirection at his trial.  On that basis he now brings his present application.

5. It is clear that in abandoning his appeal against conviction by way of a signed Form VII notice, the applicant was under no misapprehension as to the nature of the document, and there is no suggestion that the applicant in signing and filing his notice of abandonment was mistaken as to, or misapprehended, the effect of that document.  Nor is it suggested that he misunderstood in any way the nature of the appeal proceedings he was bringing to an end.  The question is, can the applicant now rely upon the laws changed understanding of the operation of section 47 of the Ordinance, which has occurred since his abandonment of his appeal, as a basis for treating that abandonment as a nullity? 

6. A fundamental principle is that a court is functus officio following the abandonment and dismissal of an appeal.  Once an appeal is dismissed, a court has no power to revisit and reopen that appeal.  That would require specific statutory authorisation and there is none.  Nor is there any common law or inherent jurisdiction to do so : see R. v. Medway [1976] 62 Cr. App. R. 85 and HKSAR v. Lai Siu Cheung [2005] 1 HKLRD 1 CA.  It is only where the act of abandonment may be treated as a nullity, and therefore also the dismissal of the appeal, that the court may continue to exercise jurisdiction over an appeal.

7. The abandonment of an appeal may be treated as a nullity only in circumstances where the applicant did not appreciate the nature of his act or its effect.  There must be in this regard such a misapprehension or misunderstanding on the part of the applicant so as to establish that his mind did not go with the act of abandonment : see HKSAR v. Lai Siu Cheung (supra), following in this regard R. v. Medway (supra) and R. v. Bridges [1998] 104 A Crim LR 322.

8. A mistake as to the merits of an appeal, whether the applicant’s own mistake or one engendered by wrong legal advice or by the state of the law at a particular time, does not go to the question as to whether in abandoning his appeal an applicant did so with an understanding of the nature and effect of that act. 

9. As was said by this court in Lai Siu Cheung :

“…. Wrong advice given as to the merits of an appeal is not advice that goes to the nature, or to the effect of signing of, the document.  To say that wrong advice as to the merits of the underlying appeal vitiates the act of abandonment is to address the wrong issue, and incidentally, would be to invite frequent arguments as to the accuracy or wisdom of advice given in many a situation where clients or counsel have second thoughts about earlier advice as to the merits, which have been followed by abandonment of appeals. ….”

10. In the present case it is, as we have said, quite clear that the applicant appreciated both the nature of his signed notice of abandonment and its effect at the time he filed it with this court.  In those circumstances his abandonment of his appeal against conviction was in no way a nullity, nor was its dismissal, and his application to treat it as such is dismissed.

11. The applicant has one remaining recourse, and that is by way of an application pursuant to section 83P(2) of the Criminal Procedure Ordinance.  He is aware of the provisions of that section and has indicated that a petition pursuant to that provision has been lodged on his behalf by the Legal Aid Department.