HKSAR v. YU WAH SANG, ANDREW

HCMA 990/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 990 OF 2006

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JUDGMENT

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1.  It is appropriate to look at the chronology of the events at the outset:

1.	1	The applicant was convicted of two charges of theft and one of using false documents, after a three-day trial during which he was represented by counsel, on 5 July 2006.
1.	2	He was sentenced on 21 August 2006 and ordered to perform community service.
1.	3	On 4 September 2006 the Applicant personally filed a Notice of Appeal which was supported by three pages of details setting out his grounds of appeal.
1.	4	He applied for Legal Aid but was notified on 22 November 2006 of its refusal.
1.	5	The appeal was set down for hearing on 13 December 2006.
1.	6	On 12 December 2006 the Applicant wrote in asking for a "delay" of the hearing in order to study documents which had been served on him and to engage a barrister.
1.	7	On 13 December 2006 the Applicant appeared before Deputy High Court Judge Longley who adjourned the matter
		"to a new date to be fixed after 18 January 2007 for the Applicant to instruct a counsel and obtain legal representation and then file a specific allegation on the conduct of [his previous counsel]"
		and ordered that supplemental grounds of appeal be filed and served on or before the 18 January 2007.
1.	8	On 16 January 2007 the applicant filed what is headed "Applicant's statement", a document running to five pages plus four further annexures.
1.	9	By written notice dated, and filed in court on, 18 January 2007 the applicant abandoned his appeal pursuant to the provisions of s. 117 of the Magistrates Ordinance, Cap. 227.  That same day he was notified, in writing, that consequent upon his Notice of Abandonment
		"the Notice of Appeal against conviction... is on this day marked dismissed...".
1.	10	The applicant then wrote a letter which referred to "Re-application of appeal".  It read, in part, that Deputy Judge Longley had
		"... stated that I... had to fix a counsel to represent me on or before the date of January 18, 2007.  Because of financial reason I could not be able to get a counsel.  But I went to the Legal Aid Department for help.  They sent me two letters... and finally on January 17 they said they had obtained all documents about this appeal case and advise me to wait for 12 weeks and gave me a reply for approval or not.  Because I did not receive it on January 18, 2007 daytime but when I came home on January 18, 2007 I found the letter from the Legal Aid Department."
1.	11	For reasons which are unclear that letter, which effectively seeks to withdraw the Notice of Abandonment dated 18 January 2007, is itself dated 16 January 2007

2.  Relating these events demonstrates that the applicant was fully aware of the procedures relating to an appeal, his right to apply for Legal Aid, his right to obtain legal representation and the time limits and obligations imposed on him by the order of 13 December 2006.

3.  The applicant's letter was placed before Tong, J., who, on 22 January 2007, ordered that

…an application for leave to nullify the defendant's abandonment of the appeal proceedings... will be listed to be heard together with his application for leave to appeal against conviction on the same day.

4.  The Applicant re-applied for Legal Aid.  The Legal Aid Department was provided with copies of all relevant documents, including the application to treat the abandonment as a nullity.  It again refused legal aid on 3 April 2007. 

5.  The matter was listed before me for hearing, firstly, of the application for leave to treat the abandonment as a nullity and, if that be successful, secondly, for the hearing of the appeal against conviction. 

6.  The law relating to the granting of applications for leave to treat the abandonment of an appeal as a nullity has been set out and  discussed extensively in a number of judgements.  I do not propose to repeat that exercise. 

7.  It is sufficient to refer to HKSAR vs AKUFFO Kwadwo Dampare CACC17/2005 where the following appears:

The test to be applied is now well established since the decision of this court in HKSAR v Lai Siu Cheung [2005] 1 HKLRD 1.  It can be stated in the following way : -

“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.  However good or bad the underlying application for leave to appeal against conviction or sentence may be, this is irrelevant.”

(see HKSAR v Law Kam Fai & Another [2006] 2 HKLRD 879, at 893 H-J).

8.  The applicant today tells me, with commendable frankness, that he did intend to abandon his appeal and that the reason for this is that he appreciated that he would be unable to comply with Deputy Judge Longley’s order.  He realised that he would be unable to engage counsel and, as a result, rather than ignore the order, abandoned the appeal.

9.  After he returned to his residence he became aware that the Legal Aid Department had agreed to reconsider his request for assistance – as it turns out, fruitlessly.  He consequently then hoped to reinstate the appeal: hence this application.

10.  Applying the law to those facts, it is clear that the applicant’s abandonment was as a result of a deliberate decision on his part, even if he may have been unaware of the long-term consequences of his action. There is thus no basis upon which I may properly allow the application.

11.  The application is dismissed.  The effect is that the appeal remains dismissed.