HKSAR v. YUEN CHI HO

[English Translation – 英譯本]
HCMA 218/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 218 OF 2013

(ON APPEAL FROM KCCC NO. 2907 OF 2012)

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REASONS FOR JUDGMENT

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1.  The Appellant was convicted after trial before Deputy Magistrate Veronica Heung (the Magistrate) on one charge of “dangerous driving causing death”. He was sentenced to 2 years’ imprisonment, disqualified from driving for 3 years and ordered to attend and complete a driving improvement course at his own expense.

2.  On 25 February 2013, the date on which he was sentenced to imprisonment, the Appellant sought to appeal the conviction and sentence. At trial, he was represented by counsel. In respect of his appeal, he also applied for legal aid but withdrew the application on his own initiative on 6 May 2013. Acting in person, he completed a Notice of Abandonment of Appeal on 7 May 2013 and filed it the following day. On 10 May 2013, the Registrar of the High Court issued a memorandum to the Commissioner of Correctional Services, notifying the Commissioner that as the Registrar had received the Appellant’s Notice of Abandonment of Appeal, the Appellant’s appeal had been dismissed.

3.  The Appellant applied to have the Notice of Abandonment treated as a nullity and to restore his appeal. At the hearing of the application, the Appellant was represented by Mr. Luk SC[1]. At the conclusion of the hearing, I dismissed the application, for reasons which are set out below.

Factual background

4.  The Appellant was a bus driver. On the day of the offence, he was driving a bus along To Kwa Wan Road in the direction of Lok Shan Road. The bus hit the victim while passing a pedestrian crossing, as a result of which she died. At the material time, the victim, acting against the “red man” light, stepped out of the central refuge island onto the pedestrian crossing to cross the road.

5.  The Magistrate took the view that the Appellant’s driving manner at the time fell far below what was expected of a competent and prudent driver, and that a competent and careful driver would obviously regard the Appellant’s driving as dangerous because:

“Obviously, the Appellant was negligent in respect of the condition of the road at the time. Such negligence was not momentary; instead, he failed to pay sufficient attention to the road or give sufficient care to passers-by for a period of time. He was extremely reckless in that, when he saw the passer-by crossing the pedestrian crossing, even though he had sufficient time to avoid the accident, he did not slow down to prepare to stop at the pedestrian crossing and let the passer-by cross the road first. Instead, he continued to travel forward, sounded the horn to give warning and then slowed down a bit in an attempt to urge the passer-by to leave the pedestrian crossing as soon as possible so that he could continue to travel forward. He was indifferent to the pedestrians on the pedestrian crossing and disregarded the possibility that some passers-by might walk slower than others. He completely failed to realize that the deceased was crossing the road slowly. It was not until he saw that the deceased was only a short distance away from him and realized that a collision was about to occur as he would not be able to apply the brake in time that he hurriedly braked harder and swerved right. However, this came too late and the collision took place.”

Application for restoration

6.  The Appellant filed an affirmation in relation to the application to restore his appeal. As to why he “withdrew his appeal”, he provided the following explanation:

“On 6 May 2013, I withdrew all my appeals because I was unable to retain a lawyer and the Court did not give notice of the hearing date or provide the relevant judgment.”

7.  Under what circumstances can the Court permit an appellant to restore an appeal which has been dismissed upon the filing of a Notice of Abandonment of Appeal? In Lai Siu Cheung[2], the Court of Appeal considered this question at length and concluded as follows[3]:

“23. It is well-established in this jurisdiction that the restoration of an appeal after an abandonment is permissible only where it can be demonstrated that the abandonment of the original application was a nullity. The reasoning to be followed is that in R v Medway (1976) 62 Cr App R 85 in which the English Court of Appeal reviewed the cases at length, and the correct principles which emerged. This Court is not empowered once an appeal has been abandoned, and therefore dismissed, to deal with an appeal. To do so would require statutory s.83P of the Criminal Procedure Ordinance (Cap.221). There is no inherent jurisdiction to hear an appeal which has been dismissed. Once an appeal has been dismissed, the Court of Appeal is functus officio and it is established that there is no co-existing inherent jurisdiction to enable the court to permit an appeal to be reopened because of special circumstances falling short of an abandonment having been a nullity:

The answer to the first question which we have to decide depends upon whether alongside the jurisdiction which undoubtedly, as all authorities show, exists to give leave to withdraw an abandonment where it is shown that circumstances are present which enable the Court to say that that abandonment should be treated as a nullity, there co-exists an inherent jurisdiction, in other special circumstances, enabling the Court to give such leave … .

As we have said at the outset, the jurisdiction of this Court and of its predecessor is based upon statute and we have been referred to and have found no authority to support the existence of a parallel inherent jurisdiction. R v Medway (1976) 62 Cr App R 85 at pp.98 and 99.

24. It follows that the only circumstances in which an abandoned appeal may be restored for hearing is if, as a matter of law, that abandonment may properly be treated as if it had never occurred, and the only circumstance in which that course is permissible is if that abandonment was in law a nullity.”

8.  The Court of Appeal took the view that its jurisdiction is based upon statute and that, once an appeal has been dismissed upon the filing of a notice of abandonment, the Court is not empowered to deal with the appeal again unless it accepts, for some reason, that the appellant’s act of filing the notice of abandonment is in law a nullity. In other so-called special circumstances, the Court of Appeal has no inherent jurisdiction to grant leave to reopen an appeal which has already been dismissed.

9.  The Court of Appeal adopted this legal principle in the subsequent cases of Ekeledo[4] and Ooi Lim Khoon[5]. According to Ooi Lim Khoon, in determining an application to treat an abandonment of appeal as a nullity, it is not necessary for the Court to consider whether the appeal itself is meritorious.

10.  Although all of the authorities referred to above are Court of Appeal cases, the abovementioned principles are in my view equally applicable to magistracy appeals as the jurisdiction of the Court of First Instance in dealing with magistracy appeals is also derived from statute.  

11.  Relying on the case of Chan Fu[6], Mr. Luk SC submitted that the Court of Appeal had, in the special circumstances of that case, exercised its power to permit an appellant to restore his application for leave to appeal. That case was decided back in 1978 and the Court delivered a very brief judgment in the following terms:

“Both Appellants applied for leave to appeal against their sentences of twelve years’ imprisonment for this raid on a Securicor van. The 2^nd Appellant, without notifying either the Director of Legal Aid or his counsel, filed notice of abandonment and they were not aware of what he had done until this morning.

No doubt it was a bad case: firearms were used and shots exchanged with the police and guards. The 1^st Appellant was armed with a knife. Mr. Stevenson has referred to Ng Tat-chor v Reg. 1977 H.K.L.R. 66 where this court said that a proper sentence for a robbery in which a revolver is used is a sentence of at least eight years’ imprisonment, but he submits that the circumstances of that case, in which sentences totalling fifteen years’ imprisonment for what are said to have been more serious robberies and accompanying shootings were altered to thirteen years, were so much more heinous that the present sentences are out of line. Mr. Polson accepts that the sentences were at the top end of the scale but contends that they were not manifestly excessive. We have discussed the matter at some length and have come to the conclusion that we ought to allow the appeal of the 1^st Appellant and substitute a sentence of ten years’ imprisonment.

The application of the 2^nd Appellant stood dismissed upon his filing notice of abandonment, but the court thinks that his sentence also was unnecessarily severe and that the judge was right to give him the same sentence as the 1^st Appellant. In the special circumstances that he abandoned his application without the benefit of professional advice, justice requires that we give him leave to renew his application and that we likewise reduce his sentence to ten years’ imprisonment.”

12.  Mr. Luk SC submitted that, as the Court of Appeal in Lai Siu Cheung made no mention of Chan Fu, Chan Fu was still a valid authority which I had to take into consideration. 

13.  In Chan Fu, the Court of Appeal apparently did not confine the power to restore the appeal or application for leave to appeal to cases in which “the act of abandonment was regarded as a nullity”. This was contrary to the principles in Lai Siu Cheung. In Chan Fu, the Court of Appeal did not conduct any legal analysis of whether it was empowered to permit an appeal to be reopened in special circumstances. It seemed that at that time the Court of Appeal took it for granted that it was so empowered.

14.  The case of Medway[7], which was relied upon by the Court of Appeal in Lai Siu Cheung, should have been available to the Court of Appeal in Chan Fu. Regrettably, in Chan Fu the Court of Appeal did not refer to or consider Medway, presumably because it was not the main issue in Chan Fu. 

15.  In my view, in Lai Siu Cheung and subsequent authorities, the Court of Appeal has clearly established the current legal principles currently applicable to the Court’s jurisdiction to restore appeals. I very much agree with the legal analysis made by the Court which in my view are highly convincing. In my judgment, Lai Siu Cheung is obviously more persuasive than Chan Fu, which no longer represents the relevant current local law.   

16.  Having ascertained the applicable legal principles, I proceed to consider whether or not the Appellant’s abandonment of appeal was a “nullity”.

17.  The Appellant stated that he “withdrew all [his] appeals because [he] was unable to retain a lawyer and the Court did not give notice of the hearing date or provide the relevant judgment”. Apart from this, in his affirmation he did not set out the circumstances in which he filed the Notice of Abandonment or how he understood such act. He merely described the evidence of the case and the Magistrate’s verdict.

18.  I find it difficult to understand the so-called reasons given by the Appellant for withdrawing his appeal. There is hardly any connection between “the Court’s failure to give notice of the hearing date or provide the relevant judgment” and his decision to withdraw the appeal. As to his failure to retain a lawyer, there was simply no reason for him to rush into the decision of withdrawing his appeal before he could retain a lawyer.

19.  In fact, even though these so-called reasons do serve to explain why the Appellant filed the Notice of Abandonment, they do not begin to prove that his act at the time was a nullity. In Lai Siu Cheung, the Court of Appeal also pointed out the situations in which an abandonment would be treated as a nullity[8]:

“We do not think it is wise to attempt some exhaustive definition or summary of those situations, but it will be seen that, typically, they tend to concern the applicant’s understanding of the effect or consequences of the document he is signing or, perhaps, misapprehending the effect of an appeal were he to persist.”

20.  It follows that, generally speaking, an appellant who applies to withdraw his notice of abandonment of appeal has to adduce evidence which indicates his understanding of that document and the act of filing it when he signed or filed it. The Court of Appeal has also clearly pointed out that the filing of a notice of abandonment on the basis of erroneous legal advice as to the prospects of success on appeal does not render such abandonment a nullity. In Lai Siu Cheung, the Court of Appeal drew a distinction between erroneous legal advice as to the prospects of success on appeal and erroneous legal advice as to the nature and effect of the notice of abandonment, and, citing the case of Bridges[9],explained the distinction in the following terms[10]:

“The rationale for a mistake as to prospects of success on appeal (irrespective of the cause of the mistake) not giving rise to a null notice of abandonment is that a notice of abandonment signed or served for that reason remains the true act of the applicant. Wrong advice of this kind does not result in a decision that is not properly informed for the purposes of the nullity test.”

21.  Taken at their highest, the reasons given by the Appellant in the present case for abandoning or “withdrawing” his appeal can only be said to indicate his misapprehension of the prospects of success of appeal and do not say anything about his understanding of the nature of such act.

22.  For the above reasons, I have dismissed the application for withdrawing the Notice of Abandonment of Appeal, which means that it was not necessary for me to deal with the submissions made by Mr. Luk SC regarding the grounds of appeal. 

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.