HKSAR v. YANG MEI YUNG

CACC169/89

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 169 OF 1989

(ON APPEAL FROM DCCC 763 OF 1988)

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J U D G M E N T

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Stuart-Moore, V.-P. (giving the judgment of the Court):

1. Just over ten years ago, on 23rd March 1989, following a trial in the District Court before Judge Souyave, where the Applicant was represented by leading Counsel, the Applicant was convicted of five charges of theft. He was sentenced altogether to terms of imprisonment amounting to three years.

2. On 29th March 1989, the Applicant applied for leave to appeal against conviction. He had the great advantage of receiving advice on the appeal from counsel, the late Mr. Gary Alderdice. In the result, on 21st December 1989, the Applicant gave notice of his abandonment of the application in relation to conviction, and the application was marked "dismissed on abandonment".

3. So far as the criminal courts are concerned, no more was heard of the matter until lengthy grounds of appeal, dated 7th December 1998, were filed with this Court. We have also been supplied with the Applicant's reasons for lodging his 'application out of time' although more correctly, as Mr. Ryan on behalf of the Respondent accepts, this hearing should be termed an application to treat the abandonment of his first application for leave to appeal as a nullity. We propose to treat it as such.

4. The reasons for the lateness of the application are given by the Applicant as follows:

"While I was serving the sentence, I had consulted a lawyer, Mr. Gary Alderdice. He advised me that my appeal would not be successful. Besides, being a businessman, I knew nothing about the law. I did not have the least inkling of the differences between the executor and the trustee of a will. This is the main reason for the delay. On the 19th March 1998, I read the legal letterbox on the Apple Daily News where a lawyer, Mr. Wong King Sheung explained that the executor take care of the estate whereas the trustee manage the trust of the will. After reading this passage, I suddenly came to realize that I had been wrongly sentenced and served two years. Now I enclose the following documents to substantiate my reasons for applying to file appeal out of time."

5. The Applicant in fact supplied opinions from Mr. Gary Alderdice, a clipping from the 'legal letterbox' of the newspaper in question and a letter from the lawyer called Mr. Wong King-sheung, explaining the differences between an executor and a trustee.

6. It is clear from the advice given on appeal by Mr. Alderdice that he particularly took note that the Applicant had been represented by leading Counsel at the trial and had elected not to give evidence on his own behalf. Mr. Alderdice concluded from his consideration of the trial papers that the judge had properly dealt with all the issues which had arisen in the trial both as to fact and law. He considered that it was "perhaps unfortunate" that at the trial the Applicant had chosen not to give evidence instead of relying upon his detailed statement under caution. In particular, Mr. Alderdice said of the material supplied to him by the Applicant himself:

"It is not for the Defendant to now complain that certain material which was in his possession at the time of the trial was not put before the Court. He was properly represented by leading and junior counsel and quite simply it is too late to raise this issue now. I do not believe that the Court of Appeal would give him leave under Section 83V of the Criminal Procedure Ordinance to adduce such fresh evidence upon the hearing of any appeal."

7. It is unnecessary to deal with the grounds of appeal which had been lodged in any detail because they seek to criticise the evidence and they ask rhetorically how the Applicant, a trustee of the estate of one Yang Hung Kwei (the deceased), could steal the property of the beneficiaries of the estate when he was one of the beneficiaries himself. The Applicant was in fact the second son of the second wife of the deceased.

8. The trustees were, by the terms of the will, required to pay out various legacies and held the residual estate upon trust and, from the income, to pay this to the deceased's third wife during her lifetime. After her death, the balance of the estate was to be held in trust for the three sons of the deceased in equal shares. In the event, money passed to the Applicant in what was termed "compensation" to the trustees of the estate which he utilised for himself without accounting for it to his fellow trustees. This was broadly the allegation covered by Charges 1 to 4, and the sums involved amounted to approximately $3,784,000. The fifth and final charge related to the theft of real property and shares belonging to the estate.

9. We are satisfied that no good reason has been advanced for this application to be heard out of time or, more properly, for the Court to treat the original abandonment of the application as a nullity, following the principles in the R v Wong Kai Kong and another, CACC 332 of 1989 which was concerned with the principles to be applied when leave out of time is sought. Silke V.-P., at page 3 of that judgment, quoted Hunter J.A. in R v Ip Chung Hang, CACC 345 of 1988, in saying that the Court should take the "unusual course" of looking at the grounds of appeal to see if they seem to be impressive and to check "that by refusing leave to appeal the Court of Appeal was not shutting out a substantial and plainly arguable ground of appeal". Silke V.-P. made it plain that the Court should bear in mind that substantial grounds must be shown for the delay before granting the extension of time. The longer the delay, the more onerous is the duty on the person making the application to provide good reasons for the lateness of his application.

10. If it is right to say that in truth this is an application to treat the abandonment of a notice of appeal as a nullity, we also have in mind the principles in R v Medway, (1976) CAR 85 and R v Tam Kwok, (1984) HKC 184. The Court has no inherent jurisdiction to permit a withdrawal of the abandonment and can only do so in circumstances where it has been shown that the mind of the Applicant did not go with his act of abandonment.

11. The matters raised in the present application involve the Applicant attempting to put before the Court evidence of material which could have been put before the Court of the trial. The late Mr. Alderdice was right when he advised that such a course would be refused. The Applicant had every opportunity to put his story before the trial Court and he elected not to do so. There is no reason which has been provided to us to show that his mind did not go with the act of abandonment in 1989.

12. Accordingly, we refuse to grant any extension of time in which to put in this application for leave. Had this been listed, as it should have been, as an application to treat the earlier abandonment of an application for leave as a nullity, we would again have reached the same conclusion.

13. The application is dismissed.