HKSAR v. LAI SAU MING

CACC 36/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 36 OF 2009

(ON APPEAL FROM DCCC No. 831 of 2008)

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving the reasons for judgment of the Court):

Introduction

1.  On 15 January 2009, the applicant, Lai Sau-ming, appeared before Deputy District Judge R Chan for sentence, having earlier pleaded guilty to eight counts of burglary of non-domestic premises.

2.  On each of the eight counts, the judge imposed a term of 18 months’ imprisonment, representing a 30-month starting point with a 40% discount. The judge ordered parts of the individual sentences to run consecutively, making a total sentence of 3½ years’ imprisonment. The judge appeared to have adopted an overall starting point of 6 years and then gave the applicant about 42% discount because of the mitigating factors known to him.

3.  On 3 February 2009, the applicant applied for an extension of time for leave to appeal against sentence on the basis that the sentence was too heavy. His application was scheduled to be heard on 24 June 2009.

4.  On 5 June 2009, the applicant filed a Notice abandoning his application for leave to appeal against sentence. The application was dismissed and the hearing fixed for 24 June 2009 vacated.

5.  On 23 February 2010, the applicant filed an affirmation, indicating his wish to re-apply for leave to appeal against sentence. The applicant told us that he was advised by the police to make the application. The application was deemed to be an application to treat the applicant’s previous abandonment as a nullity.

6.  At the end of the hearing, we dismissed the application. We indicated that we would hand down our reasons in due course and this we now do.

7.  We wish to quote two passages from the judgment in HKSAR v Lai Siu-cheung [2005] 1 HKLRD 1, which explain the principles relating to an application to treat abandonment as a nullity:

 “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 authorization and for that none exists, save the power  conferred by 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.

28.  …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 document is that he or she is signing and who, properly informed, knows what the effect is 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…”

8.  Ma CJHC makes a similar point in HKSAR v Law Kam Fai & Another [2006] 2 HKLRD 879, and further suggests at 893 H-J:

“The test to be applied is that the court must be satisfied that the abandonment was not the result of a deliberate and informed decision, meaning that the applicant’s mind did not go with the act of abandonment. The court does not inquire into the merits of the actual application for leave to appeal at all, nor should it until the said test has been satisfied. In other words, the outcome of an application to treat the abandonment as a nullity does not depend on the validity or cogency of the underlying application whose abandonment is sought to be nullified. How good or bad the underlying application for leave to appeal against conviction or sentence may be, this is irrelevant.”

9.  There was no suggestion from the applicant that he did not know what he was doing when he signed and filed the Notice of Abandonment. There was no foundation for us to consider the application to treat the abandonment as a nullity. That being the case, we should not inquire into the merits of the  application for leave to appeal against sentence at all although it appeared that the 42% discount was sufficient to reflect all the mitigating factors put forward by the applicant.

10.  The application was dismissed.