HKSAR v. SARKUNA

CACC 239/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 239 OF 2002

(ON APPEAL FROM HCCC NO. 75 OF 2002)

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BETWEEN

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

1.  In March 2002, the applicant and one other pleaded guilty at the committal stage to trafficking in 3.86 kg of ice and the applicant alone to 11.33 g of cocaine. They were committed to the Court of First Instance for sentence.

2.  On 6 May 2002 each was sentenced by Bokhary J to 16 years’ imprisonment in relation to the first count and the applicant to 3 years in relation to the second count, one of which was to run consecutively making a total in his case of 17 years’ imprisonment.

3.  It was a case with a significant international element in that both defendants were from Indonesia and were paid quite a substantial sum to come to Hong Kong to collect the drugs to take back to Indonesia.  They were kept under observation and arrested at the airport on their way out of Hong Kong.

4.  Both defendants filed applications for leave to appeal against sentence but on 23 July 2002 this applicant filed a notice of abandonment.

5.  The other defendant’s application for leave was heard and dismissed on 5 November 2002.

6.  This applicant sought to renew his application for leave to appeal against sentence so that we were required to treat the application, in the first instance, as an application to treat the 2002 abandonment as a nullity.

7.  In order to succeed in that application, it was for the applicant to show that his mind did not go with his deed of abandonment.  We took the view that in the unusual circumstances demonstrated, he successfully discharged that burden and on 18 January 2011 we directed that the abandonment of his application for leave to appeal against sentence be treated as a nullity and that the application for leave should, therefore, be heard on the merits.  In that regard, we granted him legal aid because we considered that he had raised certain matters in respect of which we would benefit from hearing counsel on both sides.

8.  As to the abandonment of his application, the applicant informed us that he did so because he was intent on making an application to be transferred to serve his sentence in Indonesia and was advised that he could not pursue such an application whilst court proceedings in Hong Kong were extant.

9.  At the hearing before us on 18 January 2011, counsel for the respondent produced to us documentation to show that, indeed, in 2002, the applicant applied for transfer to Indonesia.  There was then no arrangement between the two countries for transfer in respect of which a warrant under the Transfer of Sentenced Persons Ordinance, Cap. 513 could be issued but, nonetheless, we were shown a memorandum from the Chief Superintendent of Stanley Prison to the Commissioner of Correctional Services dated 31 December 2002 enclosing an application for transfer.  It was only in September 2004 that the applicant received a reply, this from the Secretary for Security, saying that the Secretary had been advised by the Government of Indonesia that Indonesian law did not permit the transfer of sentenced persons from other jurisdictions to Indonesia, there to serve their sentences of imprisonment.  We do not know what correspondence took place between the Secretary for Security and the Government of Indonesia but, where the reason for refusal is that the requested country does not accept persons for service of the remainder of sentences imposed elsewhere, this does seem a rather long time in which to resolve such an application.

10.  The applicant says that he was told by an officer of the Correctional Services Department, whom he cannot now identify, that it was not possible to process an application for transfer whilst proceedings were still pending in the Hong Kong courts, for which reason he abandoned his application for leave to appeal against sentence, not appreciating when he did so that he could not revive the sentence application in the event that his transfer application was rejected.

11.  We think that there is some objective support for what he says:

(1)  he in fact made an application for transfer;

(2)  section 4(2)(d) of the Transfer of Sentenced Persons Ordinance, provides that an outward warrant for transfer of a prisoner from Hong Kong shall not be made where further criminal proceedings relating to the sentenced person are pending in Hong Kong.  It is perfectly possible and understandable, therefore, for him to have been told something along the lines he now suggests even though there was no arrangement with Indonesia of the formal type referred to by the Ordinance;

(3)  it is the only obvious reason for him having abandoned the application when the other defendant pursued it;

(4)  the notice of abandonment was in English, not the applicant’s language, and it is entirely feasible that the applicant did not in the circumstances appreciate that if his application for transfer did not succeed, he would not be able to revive his appeal.  In this regard, we repeat the point made in HKSAR v Yau Ka Ming, CACC 322/2009, 14 October 2010, that consideration should be given to pointing out in the form of notice of abandonment itself the consequence of abandonment, namely, that the application is thereby dismissed and may not later be revived. We further suggest that where a person signs such a notice which is not in his language, steps should be taken to ensure that the notice of abandonment – which is, after all, brief – be translated to the applicant so that he understands it and that the fact of that translation be certified.

12.  We were concerned about the question of delay between the time, in 2004, when the applicant was notified of the failure of his application for transfer and the time, namely, 2010 when he sought to re-open the matter.  The applicant says that he has taken some time to acquire knowledge of the language in Hong Kong and to study law and procedures.  That he has done so was evident from the nature and detail of the written submissions which he has provided to us and we were persuaded that in all the circumstances the applicant was indeed motivated to abandon the application for the reasons he has provided; that he may not have appreciated its effect; and that the abandonment, should appropriately be treated as a nullity.