HKSAR v. SECK KAI TONG

CACC 205/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 205 OF 1996

(ON APPEAL FROM HCCC 370 OF 1995)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 5 March 1996, the Applicant pleaded guilty before Gall J to two counts of trafficking in heroin hydrochloride. The total narcotic quantity involved in these counts weighed 977.03 grammes, in respect of which the Applicant received an overall sentence of twelve years' imprisonment. The Applicant filed a notice of application for leave to appeal against sentence dated 20 March 1996. On 7 October 1996, Legal Aid was refused and, on 11 February 1997, his application was dismissed at court when the Applicant decided not to pursue it.

2. However, approximately seventeen months later, the Applicant again filed for leave to appeal against his sentence in an affirmation dated 21 July 1999, and it is as the result of this that the matter now comes before us as an application to treat the abandonment of his original application in 1997 as a nullity.

3. Legal Aid was refused for present purposes on 25 November 1999. Prior to this, on 8 November 1999, the Applicant wrote to the court stating that he had been advised by the Legal Aid Department to petition the Chief Executive directly for a reduction in sentence and he indicated that he was intending to withdraw his application for leave to appeal which he conceded was very considerably out of time. This letter was followed almost a month later by a further letter, dated 6 December 1999, in which he stated that he reserved his right to appeal out of time.

4. It is not necessary to deal with the facts of the case. It is well established that there is no inherent jurisdiction on the part of the court to permit the previous abandonment of an application for leave to appeal to be treated as a nullity unless it can be shown that in some way the mind of an applicant had not gone with the act of abandonment (See: R v Medway 62 Cr. App. R. (1979) 85 as applied in Hong Kong in R v Tam Kwok (1984) HKC 184 and, more recently, in the judgment given on 14 December 1999 in HKSAR v Chau Kwok-hung, CACC 67/1996 (unreported)).

5. In the present case, it is abundantly plain that the Applicant's mind did go with his act of abandonment. Indeed he asked, to use his own words, to have his application for leave "cancelled". In the papers before us, he has set out a number of reasons for his decision to take this course which it is both unnecessary and undesirable from the Applicant's point of view to go into in detail, and it is apparent that the Legal Aid Department was entirely correct in having advised the Applicant that his proper course of action was to petition the Chief Executive for clemency and for the Legal Aid Department to have assisted him towards that end.

6. Today, the Applicant confirms that the reason he abandoned his earlier application was effectively because he had no legal aid and chose, therefore, not to proceed with it. We can simply say that we understand the Applicant is pursuing his petition to the Chief Executive and that this is a course which is still open to him to take.

7. In the circumstances, this application must be dismissed.