THE QUEEN v. WONG KAI KONG AND ANOTHER

Headnote

Principles when leave out of time is sought.

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JUDGMENT OF THE COURT

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Silke, V.-P.:

1. This is an application first for an extension of time within which to file a notice of appeal against conviction brought on behalf of the two applicants Wong Kai Kong and James Wong Loony Cheung and then, should that be granted, for leave to appeal.

2. The history is that these applicants had been tried together in the District Court before His Honour Judge Downey with one Takeshi Machiya. The charge sheet originally contained four charges, the first and second of which concerned Machiya as the soliciter of an advantage and the third and fourth charges concerned the applicants as the offerers of advantages. The advantages were said to be solicited by and offered to Machiya as an agent.

3. Machiya was convicted of one of the counts as were the two applicants - in their case the third charge, this on 7th June 1989. Sentence, which was a suspended one, was passed on 12th June 1989.

4. Only D1, Machiya, sought leave to appeal and after hearings in December of 1989 and January of 1990, this Court, on 28th February 1990, gave Machiya leave and having given him leave allowed his appeal and quashed his conviction.

5. Mr. Wong Kai Kong, who was D2 at trial, was upset by the ordeal of that trial - we refer to the affidavit filed in support for the application for leave - and by the illness of his wife and, as he put it, he "summarily" decided not to make any application for leave to appeal. He was further influenced in this by the advice which he had received at trial that his chances of acquittal were good but, this estimate having proved erroneous, he did not place confidence in the subsequent advice given to him that he had a good basis of appeal. He then learned through the press of the successful application by Machiya. He felt it unfair that he should remain a convicted person in those circumstances and he accepted other advice given that, in the light of Machiya's success, his own prospects were good. He filed this application on 16th March 1990, that is ten months out of time.

6. James Wong Loong Cheung, D3 at trial, also filed his notice on 16th March 1990. In his grounding affidavit he said that he had lost confidence in his legal team at trial and he thought that, if he did appeal and succeeded. A re-trial would automatically follow. This he felt he could not stand as he had chronic heart disease and the first trial had affected his and his wife's health. He also became aware of Machiya's success and was advised to bring this application. Further he desires to emigrate and his conviction stands in his way.

7. In considering whether the applicants should be granted the indulgence they seek it is first necessary for us to consider not only the reasons advanced in the grounding affidavits for the failure timeously to make application but also the period of time which has elapsed between the conviction and the application - here, as we have indicated, ten months - and generally the bona fides of the applicant. But there is also a line of authority which runs from the judgment of the English Court of Appeal in Marsh [1935] 25 Cr. App. R. p. 49 through to a decision in this jurisdiction The Queen v. Ip Chung Hang (C.A. 345 of 1988 - unreported) and we also bear in mind that which took place in a reported case of The Queen v. Yiu Tat Hoi [1983] HKLR 7.

8. The proposition emerges from those authorities that it is open to this Court to take that which Hunter, J.A. in Ip Chung Hang described as an "unusual course'', that the Court look at the grounds of appeal to see if they seem to its members to be impressive and to check

"that by refusing leave to appeal we were not shutting out a substantial and plainly arguable ground of appeal."

9. In this exercise this Court should bear in mind that substantial grounds must be shown for the delay before the granting of the indulgence. The longer the delay the more onerous is the duty on the person making application and further, the mere fact that one defendant at trial has successfully appealed is not necessarily aground for an extension of time in favour of other defendants convicted at the same trial.

10. We have looked at the grounds here. This morning it has not been necessary for Mr. Martin Lee, who with Mr. Warren Chan appears for the applicants, to address us on them specifically. This in the light of a concession made by the Crown in a letter of 15th May and repeated to us by Mr. Ryan who appears for the Crown today that, if leave were to be granted, the Crown would not oppose the appeal as the Crown concedes that the ground upon which Machiya's appeal was allowed would be a ground upon which the present applicants could also rely.

11. In the judgment of this Court delivered on 28th February the ground which brought us to the conclusion that the conviction of Machiya was unsafe and unsatisfactory related to the course the trial judge took with respect to certain absent witnesses whom it was thought could give some evidence favourable to Machiya. In particular the manner in which he exercised his discretion to continue the trial in the absence of those witnesses. He had declined to look at the available statements of those witnesses to see whether or not their contents could have been such as to affect the case in relation to Machiya. We felt that in those circumstances his discretion was vitiated.

12. The Crown concedes that this also applies here. Counsel appearing for the applicants at trial had jumped upon the bandwaggon which he may well have thought to be rolling in his favour in relation to the application by counsel representing Machiya and the point had been taken. Further in the course of his reasons for verdict the trial judge had made reference to:

"It was never suggested that the absence witnesses could or would give evidence on crucial issues which was not available from the defendants or other persons who might be willing and available to testify on their behalf." (Emphasis supplied)

It was for those reasons that Mr. Ryan has made his concession. It is clear that a man cannot be forced to go to the witness box to rectify defects in the Crown's case.

13. In these circumstances, we think it proper that we should give the extension of time sought and we do so. We treat this hearing as the hearing of the consequential application and, in turn, treat that as the hearing of the appeal. We allow the appeal and quash the convictions of both of the applicants and set aside the sentences.