HKSAR v. HUSSAIN BASHARAT

CACC521/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 521 OF 2004

(ON APPEAL FROM HCCC 71 OF 2004)

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J U D G M E N T

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McMahon J (giving the judgment of the Court) :

1. The applicant applies for the annulment of his earlier abandonment of his appeal against sentence.

2. On 23 November 2004, following his plea of guilty, the applicant was convicted of one count of conspiracy to traffic in heroin and a second count of trafficking in heroin.  He was sentenced to 15 years and 4 months’ imprisonment in respect of the 1^st count and to 16 months’ imprisonment in respect of the 2^nd count.  Both sentences were ordered to be served concurrently.

3. On 16 December 2004 he filed an appeal against the sentences imposed upon him and subsequently applied for legal aid.

4. On 14 January 2005, the applicant was refused legal aid and on 24 February 2005, gave notice to the Registrar abandoning his appeal against sentence.  That appeal was then dismissed by the court pursuant to Rule 39 of the Criminal Appeal Rules.

5. On 13 June 2005, this court allowed the appeal against sentence of the applicant’s co-conspirator (see : HKSAR v. Kayani Hamid Iiyas, CACC521/2004) to the extent that his originally imposed sentence of 20 years’ imprisonment was reduced to one of 12 years’ imprisonment.  The grounds on which that appeal was allowed are not in any case applicable to the present applicant.

6. Five days later, on 18 June 2005, the applicant wrote to the court seeking leave to treat his abandonment of his appeal against sentence as a nullity and to renew his appeal against sentence.  He again applied for legal aid for this purpose and that application was refused on 13 September 2005.

7. In support of his present application, the applicant has provided us with his affirmation, dated 20 June 2005, setting out the reasons for his original abandonment of his appeal.

8. He says in that affirmation that following his sentence he was in shock and was unaware that he had the right to represent himself upon the hearing of his appeal.

9. The law relating to applications such as the present is well-established.  In HKSAR v. Lai Siu Cheung, CACC487/02, this court said :

“… 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 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…”

10. What an applicant must prove to succeed in an application of this sort is that his mind did not go with the deed of signing and filing the notice of abandonment because he either misunderstood the nature of the document or its effect.

11. In the present case, the actions of the applicant strongly suggest he was aware of the nature of matters material to his appeal regardless of his assertion he is suffering from a psychiatric disorder.  He lodged an application for legal aid following his original notice of appeal.  He provided his own written grounds in support of that appeal on 16 December 2004, and abandoned it only after his application for legal aid was refused.

12. He obviously understood that his co-conspirator had succeeded in his own appeal and was encouraged by that success to seek to re-instate his appeal against sentence.

13. We do not accept the applicant’s assertion that he believed he had no right to appear in person on his appeal.  The applicant has displayed some competence in marshalling the documentation required for the launching of an appeal.  In doing so, he has had the wherewithal to utilise his own resources and those of the Correctional Services Department.  He has had appearances in Hong Kong’s courts prior to his present offences.  But even if he were of the mistaken view that he could not appear in person for the purposes of his appeal, in our view, a wrong belief as to a procedural matter of that sort does not go to prove that the applicant was not aware of the nature or the effect of his signing the notice of abandonment of his appeal.

14. Accordingly, the applicant has not established any basis for treating his earlier abandonment of his appeal against sentence as a nullity and his application is dismissed.