HKSAR v. OOI LIM KHOON

CACC 147/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 147 OF 2003

(ON APPEAL FROM HCCC NO. 167 OF 2002)

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BETWEEN

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J U D G M E N T

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Hon McWalters J (giving the judgment of the Court):

Introduction

1.  In March 2003 the applicant pleaded guilty before Tong J to trafficking in 3.94 kilogrammes of methamphetamine hydrochloride and on 26 March 2003 was sentenced by the judge to 16 years imprisonment.  The judge had adopted a starting point of 24 years imprisonment.

2.  On 11 April 2003 the applicant applied for leave to appeal against sentence but at a mention of his appeal on 21 July 2003 the applicant told the Court that he wished to abandon his appeal.  He was informed by the Court that if this was his intention he should file a Notice of Abandonment of Appeal. This he subsequently did on 25 July 2003 and as a consequence of which his appeal against sentence was dismissed.

3.  On 16 February 2011 the applicant lodged with the High Court an application to treat his abandonment of appeal as a nullity so that if successful, he could then pursue an appeal against sentence.

The Application

4.  The application was supported by an affirmed statement in which the applicant explained why he abandoned his appeal on 25 July 2003.  He affirmed as follows :

“On 25-7-2003 I abandoned my appeal because on that time I am not familiar with the Hong Kong rule of laws even I don’t have perfect grounds against my sentence but now I have grounds against my sentence and I discovered that my sentence is manifestly excessive.

That’s why now I want to appeal against my sentence.”

5.  Together with this document the applicant filed a letter addressed to the Court of Appeal entitled Request for Appeal Against Sentence.  The content of this letter is identical to the statement he affirmed in support of his application and it was accompanied by a document entitled Grounds of Appeal Against Sentence which set out the applicant’s submissions on why he says his sentence is manifestly excessive.  Essentially his submission is that when compared with other similar cases his sentence is based upon too high a starting point.  The applicant has also filed a more detailed document, together with one case authority, in reply to the respondent’s submissions but in this document the applicant confines himself to advancing arguments as to why he asserts his sentence is excessive.

6.  Before us today the applicant further explained why, back in July 2003, he abandoned his appeal against sentence.

The Approach of the Court

7.  Invariably when applicants apply for their earlier abandonment of appeal to be treated as a nullity they foreshadow what their grounds of appeal, whether against conviction or sentence, would be were they allowed to argue them.  In doing so they hope that should the Court of Appeal see merit in them that this will cause the Court to look more sympathetically upon their application.

8.  Such an approach is legitimate when an applicant is seeking an extension of time in which to appeal.  In respect of this application the Court of Appeal will often consider the grounds of appeal in order to satisfy itself that it is not shutting the door on a meritorious appeal.  (see R v Wong Kai Kong & Anor [1990] 1 HKC 279).  But that is not the position with applications to nullify an earlier abandonment of an appeal.  No clearer exposition of why this is so can be found than in the statement by Ma CJHC (as he then was) in HKSAR v Law Kam Fai & Anor [2006] 2 HKLRD 879 at 893 I–J, paragraph 44 :

“The court does not inquire into the merits of the actual application for leave to appeal at all; nor should it until the said test has been satisfied. In other words, the outcome of an application to treat the abandonment as a nullity does not depend on the validity or cogency of the underlying application whose abandonment is sought to be nullified. How good or bad the underlying leave to appeal against conviction or sentence may be, this is irrelevant.”

9.  The reason why the law imposes such a strict two stage approach to these applications is quite simple.  By abandoning the appeal the applicant has caused the appeal process in respect of the abandoned appeal to be brought to an end for any abandonment of appeal operates as a dismissal of the appeal. This is the effect of Rule 39 of the Criminal Appeal Rules which provides :

“An appellant may, at any time before the hearing thereof, abandon his appeal by giving notice of abandonment thereof to the Registrar in Form VII, and upon such notice being received by the Registrar the appeal shall be deemed to have been dismissed by the Court of Appeal.” (Emphasis added)

10.  Once the appeal is dismissed the Court of Appeal is functus officio then, in the words of the English Court of Appeal in Medway at page 89, “there is no longer any proceeding extant before the Court in relation to which its jurisdiction can be exercised.”  Like the English Court of Appeal the Hong Kong Court of Appeal is a creature of statute and its jurisdiction is derived from statute.  It has an inherent jurisdiction to regulate proceedings before it but this jurisdiction only comes into operation :

“where, in cases of statutory jurisdiction, there is a lis extant before the Court upon which that inherent jurisdiction can operate.” (Medway at page 98)

11.  This was clearly explained in the definitive judgment on this issue, a decision of this Court in HKSAR v Lai Siu Cheung [2004] 3 HKLRD 1. At pages 10G to 11C the Court said in paragraphs 23 and 24 :

“23. ……

This Court is not empowered once an appeal has been abandoned, and therefore dismissed, to deal with an appeal. To do so would require statutory authorization and for that none exists, save the powers conferred by s. 83P of the Criminal Procedure Ordinance (Cap. 221). There is no inherent jurisdiction to hear an appeal which has been dismissed. Once an appeal has been dismissed, the Court of Appeal is functus officio and it is established that there is no co-existing inherent jurisdiction to enable the court to permit an appeal to be reopened because of special circumstances falling short of an abandonment having been a nullity ……

24. It follows that the only circumstances in which an abandoned appeal may be restored for hearing is if, as a matter of law, that abandonment may properly be treated as if it had never occurred, and the only circumstance in which that course is permissible is if that abandonment was in law a nullity.”

12.  Thus this Court is constrained by the fact that until the abandonment is set aside it simply does not have jurisdiction in respect of the abandoned appeal.  The only way in which it can revive that jurisdiction is if it can determine that the abandonment is a nullity.

Nullifying an Abandonment

13.  The law on what will amount to a nullity is derived from the English Court of Appeal decision of Medway (1976) 62 Cr App R 85 where the Court said at page 98 that the kernel of the nullity test is that the Court is satisfied :

“that the abandonment was not the result of a deliberate and informed decision, in other words that the mind of the applicant did not go with his act of abandonment.”

14.  The focus of the Court’s enquiry must therefore be on the state of mind of the applicant at the time he signed his Notice of Abandonment.  Questions such as, “Did the applicant know the nature of the document he was signing and the effect that document would have on his appeal” will have to be addressed. This was explained by the Court of Appeal in the Lai Siu Cheung decision when it said at page 116 that nullity situations typically :

“intend to concern the applicant’s understanding of the effect or consequences of the document he is signing or, perhaps, misapprehending the effect of an appeal were he to persist.”

15.  When the applicant argues that he acted upon legal advice it will be necessary to consider whether that advice concerns the merits of the appeal or the act of abandonment of the appeal.  In the Australian decision of R v Bridges (1998) 104 A Crim LR 322 the West Australian Court of Criminal Appeal conducted a detailed analysis of this area of the law.  This judgment was quoted with approval by the Court of Appeal in the Lai Siu Cheung case.  At pages 329 ‑ 330 Ipp J of the West Australian Court of Criminal Appeal provided the following helpful exposition of the law :

“To summarise, it is the essence of a null notice of abandonment that it was executed or served by an applicant who did not thereby intend to abandon the appeal, or did not understand the nature or effect of the notice, or misunderstood the nature or effect of the appeal itself. It is only then that the mind of the applicant can be said not to go with the act of abandonment, or that the service of the notice is not the applicants true act ……

…...

When it comes to wrong advice, the position is more complex. If the erroneous advice relied on relates to the nature or effect of the act of abandonment, the act will be regarded as a nullity. But if the advice relates only to the prospects of success on appeal, then the notice will not be declared a nullity …

The consequences of a mistake as to prospects of success on appeal do not alter depending on whether the mistake results from misapprehension as to the law, or the facts proved at the trial, or ignorance of fresh evidence, or a combination of any of these. There is no difference in principle from mistakes so caused.

The rationale for a mistake as to prospects of success on appeal (irrespective of the cause of the mistake) not giving rise to a null notice of abandonment is that a notice of abandonment signed or served for that reason remains the true act of the applicant.  Wrong advice of this kind does not result in a decision that is not properly informed for the purpose of the nullity test.”

Satisfying the Test

16.  The burden is clearly on the applicant to persuade this Court by credible evidence of facts which would satisfy the nullity test.  The starting point for the Court will be that in most cases persons signing an important legal document by which they throw away their right of appeal will be taken to be aware of what they are doing.  As Ma CJHC said in Law Kam Fai & Anor at page 894 D – E :

“In most cases, however, without more, a person can be taken to realize that when he is signing a notice of abandonment, he is doing just that.”

17.  Clearly relevant to the credibility of any explanation advanced by the applicant is the delay that has elapsed between the filing of the Notice of Abandonment and the application to treat the abandonment as a nullity.  The longer the delay the harder it may be for the applicant to persuade the Court that he is not in the category of a person simply having second thoughts about the merits of appealing.

Analysis

18.  The applicant’s explanation for why he abandoned his appeal as set out in his affirmed statement goes no further than saying that he abandoned his appeal because, on the limited knowledge he then had of Hong Kong law, he did not think he had good grounds of appeal.  He does not claim that he did not know what he was doing when he signed the Notice of Abandonment or did not appreciate the consequence to his appeal of his so doing.  Indeed this would have been rather difficult for him to do as he had actually indicated his intention to abandon his appeal at the time his appeal was brought up for mention on 21 July 2003.  At that time he informed this Court that he wished to cancel his appeal and he was then told that in order to do so he would have to file a Notice of Abandonment and, of course, some days later he did.

19.  On the legal principles that we have set out earlier in this judgment the applicant’s explanation for why he abandoned his appeal cannot satisfy the nullity test.  Nothing he has said before us today assists him in this regard.

20.  The application, is therefore, dismissed.