HKSAR v. AKUFFO Kwadwo Dampare

CACC17/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 17 OF 2005

(ON APPEAL FROM HCCC NO. 117 OF 2004)

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J U D G M E N T

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Hon Ma CJHC (giving the judgment of the Court) :

1.  On 22 December 2004, the Applicant was convicted of two counts of trafficking in dangerous drugs, one on his plea, the other after trial by jury before Gall J.  The Applicant had pleaded guilty to trafficking in 6.52 kilogrammes of cannabis.  The other count related to 1.03 kilogrammes of a mixture containing 860 grammes of heroin.  The same day, the Judge sentenced the Applicant to 16 months’ imprisonment for the cannabis charge and 20 years’ imprisonment for the heroin trafficking charge, both sentences to run concurrently.

2.  The charges related to the events of 10 January 2004 when the Applicant (a gentleman from Ghana), having arrived in Hong Kong from Thailand, was arrested at Mirador Mansions in Tsim Sha Tsui carrying two suitcases containing the said drugs.

3.  By a Notice of Application dated 13 January 2005, the Applicant applied for leave to appeal against conviction and sentence in relation to both offences.  The grounds of appeal against conviction in that document merely stated that the Applicant needed to contact his barrister at trial before grounds of appeal could be submitted.  In that part of the Notice of Application relating to sentence, he stated he was not really concerned about his sentence, only about the conviction.

4.  By a letter dated 16 March 2005 to the court, the Applicant stated that he wished only to appeal in respect of the second (more serious) count of trafficking in heroin.  However, on 30 March 2005, he abandoned his applications for leave altogether.

5.  By an affidavit dated 29 March 2006, the Applicant applied to this court to treat this earlier abandonment as a nullity.  He gave the following reasons to support the application : -

“The reason why is the Legal Aid refused to grant me assistance and my personal problem because I’m not good enough in English language also no experience in criminal jurisdiction but study my case for several months, I found out many errors in the trial.”

6.  We first deal with this application without going into the merits of the Applicant’s appeal (he has provided detailed grounds of appeal contained in documents dated 2 June 2006 and 7 August 2006).  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).

7.  In our view, nothing in the Applicant’s affidavit approaches anywhere near establishing that his act of abandonment was not as a result of a deliberate and informed decision.  It is clear to us that he fully intended to abandon his applications for leave.  The refusal of legal aid may have influenced him in abandoning his application but this does not show that he did it somehow unwittingly.  Similarly for his claim of not being conversant in English or not having any knowledge of criminal law : these aspects do not show that he was unaware of what he was doing when he abandoned.  We should perhaps also add this : the Applicant’s standard of English from the documents he has provided to us appears to be more than adequate.  We also note that in the Agreed Facts at trial, it was stated that upon his arrest on 10 January 2004, the Applicant was asked by the arresting customs officers whether he spoke English, to which he answered in the affirmative.  This morning he has informed us that at the time of his abandonment, he did not have a lawyer representing him and it was only later that he realized (apparently with the assistance of a social welfare officer) that he may have had arguable grounds of appeal.  This is, in our view, also insufficient.

8.  In the circumstances, we dismiss the application to treat the earlier abandonment as a nullity.