HKSAR v. CHOI WING MAN

CACC000734B/1997

CACC734/1997

HEADNOTE

Appeal to Court of Final Appeal - s.33 of Court of Final Appeal Ordinance (Cap. 484) - Practice Direction 3.3 issued 1st January 1998 - Applications to Court of Appeal for a certificate that the decision involves a point of law of great and general importance - consideration of requirement to make application to Court of Appeal immediately after the judgment is given.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

(Civil Appeal No. 734/1997)

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J U D G M E N T

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Rogers J.A. :

1. This is an application for a certificate under Section 32(2) of the Court of Final Appeal Ordinance that a point of law of great and general importance is involved in the decision which this Court gave. This Court or the Court of Final Appeal must certify that such a point is involved in the decision before any leave to appeal can be granted.

2. This case was heard on the 26th June of last year. The decision of the Court was reserved and was delivered on the 16th July. The Vice-President, on that occasion, was on leave and only two members of the Court were present.

3. Counsel who had argued the case on the 26th June was present when the reserved Judgment was delivered. We were told at the time, and we have been reminded today, that on that occasion, it was more by accident than design since Counsel had noticed the name of the case on the Court list and had therefore attended, although he had not been notified by his solicitors.

4. The decision on the 16th July was as to conviction only. On that occasion, since one of the members of the Court was not present, the application to appeal in respect of the sentence had to be stood over until that member had returned. The matter was restored for hearing on the 22nd October. Again, the Applicant was represented by the same Counsel. We have been told today that on that occasion he was acting gratuitously, nevertheless he was fully instructed and he represented the Applicant on the matter of sentence and indeed succeeded in having the sentence reduced.

5. Section 33 of the Court of Final Appeal Ordinance, Cap. 484 provides that an application to that Court for leave to appeal should be made within 28 days from the date of the decision of the Court of Appeal. In order to cater for that, a Practice Direction was issued on the 1st January of last year. Paragraph 3 of that Practice Direction provides that :-

6. The next paragraph says :

7. There is good reason for that Practice Direction. The reason is this that the constitution of the Court of Appeal varies. Sometimes, it takes time to gather together the same members of the Court of Appeal. It is very much in the public interest that the same members of the Court of Appeal should consider the question of whether there is a point fit to go to the Court of Final Appeal or not. Furthermore, when the decision is given, the facts of the case and the arguments are fully in the mind of the Court. Hence the provision that application for a certificate should be made immediately after Judgment. The requirement that the matter be raised immediately after the judgment should cause no difficulty because, save in exceptional circumstances, the point would have been argued and would have been dealt with in the judgment. It is of great importance therefore that this Practice Direction is adhered to.

8. When applied to this case, even if the application should not have been made on the 16th July, which is a matter which I leave open, clearly, if a certificate were to be applied for under Section 32, that should have been done on the 22nd October, and there was no reason why it should not have been. The judgment of this Court had been available for months before that day. If the Applicant wished to apply for a certificate that should have been done on that day when the members of the Court were present. Indeed, I would add that the Vice-President today is not the same Vice-President as heard this appeal, simply for the reason that that Vice-President is on leave.

9. The matter does not end there because the Notice of Motion for this application was dated the 16th December. Some explanation has been proffered in an affidavit of Alice Chung as to how the delay came about. But that is only in respect of the period after 22nd October, not a word is said about the period from 16th July to 22nd October. It is said that on the 4th November, the Applicant applied for legal aid; that clearly was within 28 days from the 22nd October if that is the correct day to be taken. Then it was said, without specifying why, that it proved difficult to obtain the papers from the previous solicitors. There is no indication as to what that difficulty entailed or the reason for it. Instructions were then given to Counsel on the 25th November which is outside the 28-day period. But it was not until some 3 weeks later the Counsel produced the draft Notice of Motion which contains one single point.

10. In all those circumstances, I cannot see that it would be right for this Court to entertain this application. Any application to the Court of Final Appeal will now be well out of time and this application is made in clear breach of the Practice Direction which has been in force now for over one year. It has been submitted to us that the Practice Direction may be something which can be safely infringed and that applications can be made to this Court in breach of the Practice Directions. That is a fallacious view. It ignores the purpose of Practice Directions. Practice Directions are there to show how applications, in particular in this instance, are to be made. If they are not observed and there is no adequate explanation, this Court will not entertain those applications.

11. Having dealt with the procedural matter, it only remains to be said that I have considered the point which is raised in the Notice of Motion. We have not heard argument on it today but, in my view, it has no merit. The point seeks to derive assistance from a case which was considered by this Court but the circumstances relating to it were different. The question turns upon the inferences which can be drawn in particular cases and the fact that evidence may be necessary in some cases to found inferences specifically where prejudice within the meaning of Section 70(1)(f) of the Crimes Ordinance, Cap. 200 is relied upon but in other cases where prejudice within the meaning of other sub-sections of Section 70(1) is relied upon, and this is such a case, the inferences to be drawn may be plain on the face of the matter.

12. For those reasons, I would not entertain this application.

Stuart-Moore, J.A. :

13. On 16th July 1998, this Court delivered its judgment dismissing the appeal against conviction on a charge of possessing a false instrument, contrary to section 75(1) of the Crimes Ordinance, Cap.200. The appeal against sentence was heard on 22nd October 1998 when judgment was given.

14. A Notice of Motion dated 16th December 1998 and received by this Court on 17th December 1998 gives rise to this application under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap.484, for a certificate that a point of law of great and general importance is involved in the decision of this Court. Section 33(1) of the Hong Kong Court of Final Appeal Ordinance reads :

Subsection (2) reads :

15. It goes without saying that this application is considerably outside the time limit and this is candidly accepted by Mr Macrae. It also goes without saying that no application for any extension of time was ever requested.

16. We have been provided with the affidavit of Alice Chung Yee-ling which was served on the Court yesterday, so late that, speaking for myself, I did not receive it until this morning. I find totally unacceptable the reasons for the lateness of this application.

17. At the hearing of the appeal itself, Mr Macrae was privately instructed and he appeared as a matter of courtesy on the judgment relating to conviction. It is pointed out that he wrote to his instructing solicitors, Messrs. Littlewoods, advising in effect that the Applicant had possible grounds for seeking a certificate and that legal aid should be sought in the event of any difficulty with funds. Mr Macrae is a highly experienced advocate who will have been aware, and again candidly agrees he was aware, of the Practice Direction which took effect on 1st January 1998. The relevant paragraphs of that Practice Direction read :

18. It was the duty of Mr Macrae, when privately instructed, to have made the initial application, at the latest, at the conclusion of the appeal against sentence, by which time he had had over three months in which to consider the judgment in relation to conviction. In fact, as once again Mr Macrae accepts in his submissions today, the Practice Direction appears to indicate that the application for a certificate, or an indication of it, should have been made on 16th July 1998. We quite accept, however, that because of the special difficulties relating to Mr Macrae's attendance that day, there were circumstances which might well have briefly extended the time for making the application itself.

19. Under these circumstances, I would not be prepared to entertain the present application. In any event, having considered the question posed in the Notice of Motion, I would not have been minded to certify. Accordingly, I would dismiss this application, being out of time.

Nazareth V-P:

20. The circumstances underlying this application are unusual which is why contrary to the usual practice of this Court I have invited my brothers to also give their reasons.

21. Mr Macrae is not persuaded that he needs to apply for leave but nonetheless, presumably in abundance of caution, has applied for leave. It is upon that basis, as I see it, that I have to approach the matter and address that application. Mr Macrae takes that view upon the absence of any reference to the Court of Appeal in s.33(1). However, it does not seem to me that the absence of a time limit expressly applied to the Court of Appeal in that provision absolves an applicant under s.32 from complying with the requirements of the Practice Direction i.e. 3.3.

22. As my Lords have demonstrated, there is no good reason to grant an extension of time in the particular circumstances which I do not propose to repeat. That may be regarded as a result that would cause undue hardship to the applicant, but, of course, this Court does not finally dispose of these matters. The applicant would in any event, even if a certificate had been granted, have to go to the Court of Final Appeal. Speaking for myself, I find it reassuring that the applicant is not precluded from taking that step.

23. In the result, the application is dismissed.

Representation: