HKSAR v. NGAN WAI YEUNG

FAMC No 37 of 2016

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 37 OF 2016 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NO 69 OF 2015)

_______________________

_______________________

_______________________

REASONS FOR DETERMINATION

_______________________

Mr Justice Tang PJ:

1.  At the conclusion of the hearing, leave to appeal was refused.  These are our reasons.

2.  The applicant was convicted after trial in the District Court of one count of attempted burglary and was sentenced to imprisonment for three years.  He applied for leave to appeal against conviction and sentence.

3.  His application for leave to appeal against conviction as well as sentence was heard on 23 October 2015 before Yeung VP pursuant to s 83Y(2)(a) of the Criminal Procedure Ordinance (“CPO”) Cap 221. Yeung VP refused leave and stated his reasons in an extempore judgment.  As the applicant was entitled to have his application determined by the Court of Appeal under s 83Y(3) of the CPO, Yeung VP reminded him of his right to do so and of the fact that if the Court of Appeal regarded his application to be unmeritorious, it may order that time spent in custody pending the appeal be not reckoned as part of his sentence.[1]  

4.  In accordance with rule 42 of the Criminal Appeal Rules Cap 221A, the Registrar notified the applicant of Yeung VP’s decision by Form XII and forwarded to him Form XIII which the applicant was required to fill up and return to the Registrar within 14 days of the receipt of the
Form XII.  Form XIII was duly returned by which the applicant renewed his application for leave to appeal against his conviction to the Court of Appeal.  

5.  On 26 February 2016, Yeung VP, Poon JA and Barnes J dismissed his application but made no order for loss of time.

6.  By a notice of application dated 7 July 2016 the applicant  applied for leave to appeal to this Court on the ground that substantial and grave injustice had been done and that Yeung VP, who had dealt with his application as a single judge, could not lawfully sit as a member of the Court which decided his subsequent application.

7.  On 16 December 2016 in HKSAR v MD Emran Hossain (2016) 19 HKCFAR 679, this Court held that:

“Subject to the rules concerning disqualification of a (single) judge from sitting by reason of bias, whether actual or apparent, a single Justice of Appeal who has refused leave to appeal to the Court of Appeal under section 83Y of the CPO may lawfully sit as a member of the panel if the applicant seeks to have his application determined by the Court of Appeal.”[2]

8.  In view of Hossain, Mr P Y Lo, counsel for the applicant, sought to raise two new arguments.  First, that the single judge who had heard the initial application was functus officio and therefore could not lawfully be a member of the Court of Appeal to hear the renewed application.  Secondly, he submitted that a question of great and general importance is involved in the decision, viz, whether the common law or Article 11(4) of the Hong Kong Bill of Rights requires the single judge:

“to give reasons for his decision that are adequate, intelligible and in written form …”

9.  As Burnett LJ explained in delivering the judgment of the English Court of Appeal in R (on the application of Demetrio) v Independent Police Complaints Commission [2015] EWHC 593 (Admin):

“36. Functus officio means no more than that a judicial, ministerial or administrative actor has performed a function in circumstances where there is no power to revoke or modify it.”

10.  This has no application here.  As Fok PJ said in Hossain, a renewed application is not an appeal,[3] moreover,

“26. … At the time when the single judge refuses the original application, (the application for leave to appeal) is not finally determined until after its review by the full court or after the applicant elects not to renew the application.”

11.  I turn now to Mr Lo’s submission that the common law or Article 11(4) requires a written judgment.  Yeung VP delivered an extempore judgment at the conclusion of the hearing before him as a single judge.  Mr Lo’s only complaint is the applicant was not supplied with a transcript or Yeung VP’s oral reasons in any written form.  It is not suggested that the applicant did not understand Yeung VP’s extempore judgment or that he was unable to obtain a transcript.  Article 11(4) provides that “Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.” Mr Lo submits that for such right to be effective and meaningful “the convicted person is entitled to have access to a duly reasoned, written judgement of the trial court, and to other documents, such as trial transcripts, necessary to enjoy the effective exercise of the right to appeal.”[4]   Mr Lo drew attention to Form XII, at para 3 of which these words appear: “OBSERVATIONS to the Appellant (if leave refused).”[5] and that in the copy sent by the Registrar to the applicant para 3 did not appear.  It is argued that the language of Form XII shows that it was expected that the observations of the judge refusing leave would be included.

12.  In the present case, the question is purely academic.  No loss of time order was made.  Mr Lo was unable to say that the applicant was prejudiced in any way.  Even if written reasons were required, this point is of no consequence in this case.

13.  Lastly, leave is sought on the substantial and grave injustice ground.  The applicant was charged on two counts, for burglary on 12 May 2014 and for attempted burglary on 20 May 2014.  He was acquitted on the first count but convicted on the second.  The principal witness on the first count was Ms Liu, and the judge was not satisfied with her identification of the applicant.  The second charge concerned an event on 20 May 2014, when the applicant was arrested by Mr Liu (“PW2”) and his conviction depended on the trial judge’s evaluation of the evidence of PW2.  The applicant did not testify at his trial but he was legally represented. The trial judge accepted the evidence of Mr Liu.  The Court of Appeal after a detailed examination of the applicant’s criticism of the trial judge’s decision was satisfied that the conviction was safe.  There is no basis for leave on the basis that substantial or grave injustice has been done.

14.  For these reasons, we dismissed the application for leave to appeal.