HKSAR v. ISLAM JAVED IQBAL

CACC 33/2023

[2025] HKCA 298

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 33 OF 2023

(ON APPEAL FROM HCCC NO 51 OF 2021)

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J U D G M E N T

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

1.  On 5 June 2024, leave was granted by the Single Judge[1] to appeal against his conviction for murder. On 18 June 2024, the Court set down the substantive appeal for hearing on 19 March 2025. Unfortunately, on 7 July 2024, the appellant took his own life whilst in prison custody. A preliminary issue before us, therefore, is whether his appeal should abate upon his death or be permitted to continue.

2.  The appellant was initially represented at the appeal by Mr Richard Donald, on the assignment of the Director of Legal Aid. In his written submission dated 14 October 2024, Mr Donald suggested that despite the death of the appellant, the appeal should continue and may be taken up by his father[2]; although, notwithstanding the Court’s directions on 16 September 2024[3], no affirmation evidence has ever been filed by anyone with a view to substituting the father for the appellant in these proceedings.

3.  On 26 February 2025, a Notice of Discharge (of the legal aid certificate) was issued on behalf of the Director of Legal Aid to all parties and the court, together with a letter of the same date explaining that the grant of legal aid could only be extended to persons charged with an offence, under Rule 4(1)(c) of the Legal Aid Criminal Cases Rules, Cap 221D, and not to the deceased’s family members. The letter went on to state that:

“We have requested our assigned solicitors to inform the deceased’s family members of the discharge of legal aid certificate. We leave it to the family members to decide whether to proceed with the appeal.”

4.  It is to be noted that the Court was not privy to the means of contact with the appellant’s father, or any other family members. Nevertheless, in order to ensure that the family members were apprised of the situation fairly and transparently, Macrae Acting CJHC gave the following direction, on 4 March 2025:

“The content of the letter from Legal Aid Department dated 26.2.2025 is noted. As of today, the Court has not received any application from any person applying to be a party to the appeal in substitution for the appellant (deceased). The respondent is to ascertain from the appellant’s discharged solicitors and/or family members whether such application is intended for this may be relevant to whether the hearing should proceed as fixed and ex parte. The respondent should state the outcome of their enquiries and their position on or before 12.3.2025.”

5.  On 7 March 2025, the appellant’s discharged solicitors informed the Court in writing that the appellant’s father was not able to secure a flight from the United Kingdom in order to attend the hearing. The solicitors stated that they would continue to notify the Court if he was able to make the relevant arrangements to return to Hong Kong. On the same day, Macrae Acting CJHC made this further direction:

“The Court acknowledges the assistance of the discharged solicitors in contacting the appellant’s father. The Court’s real concern, however, is not whether the father will attend the hearing as a non-party but whether he intends to substitute (for) the deceased in the proceedings following the discharge of legal aid and argue (by himself or legal representatives) that the appeal should continue notwithstanding the appellant’s death, which is the preliminary legal issue at the hearing. If no substitution application is received, the Court may, having regard to the respondent’s position to be indicated, decide whether it will proceed on 19.3.2025.”

6.  On 10 March 2025, the discharged solicitors reverted to the Court to say that the Court’s directions had been duly relayed to the appellant’s father, who had yet to make a substantive response. Nothing further has been heard from anyone.

7.  The hearing was fixed at 10 o’clock this morning. To err on the side of caution, before the Court convened, a Judicial Court Clerk called three times, at 10 o’clock and at 10:15 am to see whether the father was in, or outside, the courtroom, but there was no response. When the Court convened at 10:30 am, we decided to proceed with hearing arguments from the respondent on an ex parte basis as to whether we should continue with the appeal in the circumstances.

Arguments in support of the continuance of the appeal

8.  In the interests of fairness to the appellant and his family, we shall take into account the written submission of Mr Donald in support of the appeal continuing. His principal contentions were that:

(a)  the Single Judge had granted leave to appeal on the basis that the grounds of appeal were reasonably arguable;

(b)  the appellant and his family members have an interest in the outcome of the appeal. Such interest, Mr Donald submitted, had nothing to do with any financial interest dependent upon the outcome but a need to preserve and restore the reputation of the appellant, who had been convicted of a very grave offence;

(c)  there is a strong public interest in the appeal being heard (however, this point was not elaborated upon in Mr Donald’s written submission); and

(d)  the Court should not prevent the appeal from proceeding on a proper adversarial basis (however, this submission was based on the assumption that “the Legal Aid certificate would continue until the conclusion of all legal proceedings”[4], which, for reasons referred to above, did not eventuate).

The respondent’s arguments in opposition

9.  Whilst accepting that the appellant’s arguments were based on the relevant factors propounded in HKSAR v Cheng Chee Tock Theodore[5] and R v Smith[6], Ms Claudia Ng, on behalf of the respondent, made the following points:

(a)  leave to appeal was granted in relation to the correctness of the judge’s directions on causation, which, as in Smith, might at most be regarded as a reasonably arguable point but was far from demonstrating that the appellant was or might be innocent[7];

(b)  the interests of the appellant and his family members, whilst important, should not be given exclusive or undue emphasis, since if the appeal were to continue, and ultimately be allowed, no order for re-trial could conceivably be made, which would necessarily deprive the deceased victim and his family of justice and finality;

(c)  there was little public importance engaged by allowing the appeal to continue where valuable but limited judicial resources were to be spent on a moot appeal, given the likely orders which would ultimately be made; and

(d)  the continuation of the appeal on a proper adversarial basis was not possible because of the discharge of legal aid.

10.  Ms Ng further drew a distinction between the applicant (or appellant) in HKSAR v Tang Tik Hung[8] and Smith, who passed away in custody as a result of illness, and the appellant who died as a result of his own act of suicide. The Court was invited to regard that as a factor relevant to showing the appellant’s disinclination to continue with his appeal, knowing that he had already been granted leave to appeal.

Discussion

11.  The approach as to how a court in this jurisdiction should deal with a criminal appeal upon the death of an applicant (or appellant) was extensively discussed by this Court in Tang Tik Hung. The Court held, at [20], that:

“…if a convicted and sentenced person dies after applying for leave to appeal against conviction or sentence, the Court of Appeal retains the discretion to consider all relevant factors before deciding if the application for leave should continue or automatically terminate and abate. We find that the factors set out at para 51 in the judgment of Cheng Chee Tock Theodore and in Smith most helpful in guiding the Court to decide how to exercise the discretion.”

12.  The factors set out in Cheng Chee Tock Theodore at [51] were, of course, made in the context of section 31 of the Hong Kong Court of Final Appeal Ordinance, Cap 484. They were:

“(1) Whether leave to appeal has been or will be granted: The Court will be guided primarily by whether leave to appeal has been granted or, if leave has not yet been granted, by the basis on which leave to appeal is sought and the likelihood of such leave being granted. Where leave to appeal is sought on a point of law, this will probably be a critical factor in any given case since the grant of leave to appeal on that ground will serve to demonstrate the Appeal Committee’s view that the appeal is of sufficient importance to be heard by the Court as the final appellate court in Hong Kong. Similarly, although not as critical as the point of law ground, the grant of leave to appeal on the basis of substantial and grave injustice will be a relevant factor, the weight of which will depend on the circumstances of the particular case.

(2) The existence of an applicant: The existence of a party who wishes the appellant’s appeal to be continued and who makes an application for such continuation will usually be an essential requirement. It would be most unlikely that the Court would consider exercising the discretion to continue if there were no such party. Indeed, in the absence of such a party, the application of the provisions for dismissal of an appeal for non-prosecution (where leave has been granted) will probably result in the dismissal of the appeal.

(3) The continuation of the appeal on a proper adversarial basis: The Court will be concerned that the issues to be determined by it in any continued appeal are to be properly argued. The willingness of the party applying for the appeal to be continued to be substituted as appellant will be relevant in the event the Court considers such substitution to be necessary. Similarly, the Court will wish to be satisfied that the appeal will continue on a proper adversarial basis with appropriate legal representation to argue the appeal. It may wish to be satisfied that legal aid is available for the appellant’s case or that the applicant is otherwise able to instruct legal representatives for the appeal. In cases of exceptional importance, the Court may see fit to appoint an amicus curiae.

(4) The interest of the applicant in the continuation of the appeal: The reason why the party applying wishes the appeal to be continued will be relevant. The financial interest of an appellant’s estate in the pending appeal may be relevant where the executors or personal representatives of the appellant apply for the appeal to be continued. If financial interest is relied upon, the nature of that interest and its amount will be relevant to the weight to be attached to this factor. Similarly, the applicant’s interest in restoring the reputation of the appellant may be relevant but this will be a factor to which varying weight will attach: the graver the offence of which the appellant has been convicted, the more weight this factor will carry.”

13.  We consider that those factors are also applicable to a consideration of the present case, whilst nevertheless bearing in mind that an application to this Court is on a rather different statutory basis from an application to the Appeal Committee of the Court of Final Appeal[9]. A Single Judge of the Court of Appeal, when granting leave to appeal, merely has to be satisfied that the grounds of appeal are reasonably arguable[10]. The Court of Final Appeal in Cheng Chee Tock Theodore was at pains to make clear[11]:

“It should be stressed at the outset that these issues are raised in the context of a criminal appeal to this Court. Different considerations may apply in respect of criminal appeals to the Court of Appeal or to the Court of First Instance and it should not be assumed that the answers in this judgment to the questions posed will apply in respect of criminal appeals to those courts.”

14.  When an appellant has obtained leave to appeal from the Appeal Committee of the Court of Final Appeal on a point of law of great and general importance (as well as on a substantial and grave injustice limb), as in the Cheng Chee Tock Theodore case, it must be presumed that there is a strong public interest in the appeal being heard. As Dr Christopher Corns has put it, in his book Criminal Appeals in Hong Kong[12]:

“Because of the stringency of the leave requirements, if leave is granted, there will always be a strong public interest in the appeal being heard as the appeal will involve a matter of general public interest. That public interest goes beyond the personal interests of the appellant.”

15.  There is no such presumption where leave to appeal is granted by a Single Judge of the Court of Appeal on the basis that the appeal is reasonably arguable. In our view, no importance of any question of law, giving rise to a strong public interest, can be discerned from the continuation of the present appeal.

16.  Furthermore, despite counsel’s assertion that this appeal may be taken up and continued by the appellant’s father, the fact remains that no application for substitution has ever been made by him, notwithstanding a lapse of six months since the Court gave its directions on 16 September 2024, for five months of which period legal aid subsisted for both counsel and solicitors until it was discharged on 26 February 2025. Mr Donald’s written submission, in which he made the assertion, was dated 14 October 2024, four weeks after the Court’s directions and four months before legal aid was discharged.

17.  We are satisfied that the appellant’s father was duly informed and reminded by the Court of his right to apply to substitute for the appellant in this appeal, and through the discharged solicitors, of the consequences of proceeding with the hearing in his absence. As things now stand, he is deemed to have waived his right by way of his conduct, rendering a proper adversarial process impossible. We should make clear that this is not a case, in our judgment, “of exceptional importance”[13] justifying the appointment of an amicus curiae. In the same vein, any interest of the appellant in the continuation of the appeal would also seem to be more illusory than real.

18.  It should be remembered that while the appellant’s family have an important interest (if they wish to pursue it) in wanting to clear their family member’s name on appeal, the deceased’s family also have an important interest in and expectation of justice being done as well as the finality of the case.

19.  Having considered and balanced all the circumstances of the case, including the grounds of appeal and their ultimate likely success, we are of the view that there is no justification for exercising our discretion to allow the present appeal to continue following the death of the appellant. Accordingly, we order that the appeal and the related legal proceedings shall terminate and abate.