PRACTICE DIRECTION – 4.2
CRIMINAL APPEALS TO THE COURT OF APPEAL
PART I – TITLE OF APPEALS
1. Any application for leave to appeal and any appeal to the Court of Appeal will carry the same title as that which obtained in the Court of First Instance.
2. This means that the prosecutor will be shown first as such in the title, whether he is the appellant or respondent in the appellate court.
3. The Hong Kong Special Administrative Region will appear first, whether it is appellant or respondent.
PART II – PROCEDURE
4. Initial Grounds
Where there are “reasonable” grounds of appeal, the solicitor or counsel who was present at the trial, if instructed, should give advice on the prospects of an appeal. He should be in a position to formulate “initial grounds” immediately after the conclusion of the case and without waiting for the transcript of the evidence, of the summing-up or of the reasons for verdict or sentence and to advise the applicant on the filing of the required notice. These grounds are termed “initial grounds” in contrast with “perfected grounds” and should be signed by the drafter and accompany the notice of application for leave to appeal.
If the lay client is not given advice, and is unrepresented during the period limited for the bringing of appeals against either conviction or sentence, officers of Correctional Services will assist him by the provision of the required forms and the forwarding of them to the Registrar, High Court.
5. Where solicitor or counsel settles grounds of appeal, it is his duty to ensure that —
(a) (i) grounds are only put forward where he has satisfied himself that they are arguable; it is not his duty to put forward grounds merely because the appellant wishes him to do so;
(ii) grounds are not put forward unless they are “reasonable”, that is, they afford some real chance of success;
(iii) grounds are not put forward unless they are supportable by oral argument and are particularised; and
(iv) the grounds put forward are settled with care and accuracy.
(b) It is not sufficient merely to state that “there was no or no sufficient evidence to ground the conviction”. While greater latitude will be given to applicants in person such grounds risk the application being treated as invalid.
(c) If leave out of time is sought in respect of either conviction or sentence, a grounding affidavit from the applicant personally should be filed with the application setting out in detail the reasons for it.
6. The Appeal Papers
(a) Once a notice of application for leave to appeal has been lodged with the Registrar, the Clerk of Appeals will obtain from the judge’s clerk the “appeal bundle”.
This will consist of —
(i) in Court of First Instance cases — the indictment, a transcript of the summing-up, the shorthand note of the verdict and the criminal record, if any, and where appropriate the transcript of sentencing and copies of any reports called for by the judge;
(ii) in District Court cases — the charge sheet, the summary of facts, the criminal record, and the reasons for verdict or, where appropriate, the reasons for sentence and any reports called for by the judge; and
(iii) in all cases any statement of agreed facts introduced at the trial will also be required.
(b) The Clerk of Court will send copies of the appeal bundle to the applicant or his solicitors or, if legal aid has been applied for, to the Director of Legal Aid and to the Secretary for Justice and will submit one set to a justice of appeal for directions. If the Directions Judge considers any additional papers are necessary, he will so direct and the Clerk of Court will arrange for them to be prepared and sent to the parties.
(c) If an applicant or his legal advisers, or the Secretary for Justice, consider that additional papers are necessary, he or they should apply in writing to the Registrar, High Court, marked for the attention of the Clerk of Court, stating precisely what papers are required and giving detailed reasons for the application. The application will then be referred to the Directions Judge.
(d) It should be clearly borne in mind by those requesting further papers that transcripts are expensive and take a long time to prepare. Only those portions of the transcript necessary for the purpose of arguing the initial grounds should be requested.
If it should become apparent that further papers are required before the perfection of the grounds, a fresh application should be made.
The above also applies to documentary exhibits.
(e) When the portions of the transcript or the additional papers requested have been received by the applicant's solicitors or the Director of Legal Aid, they should, without delay, be sent to counsel who should be instructed to “perfect” the grounds of appeal. When this has been done, the solicitor should send the perfected grounds, settled and signed by counsel, to the Clerk of Court and to the Secretary for Justice, with a copy to the applicant.
6A. Single Judge Applications for Leave
By section 83Y of the Criminal Procedure Ordinance, Cap 221, a single judge of the Court of Appeal or the Court of First Instance is empowered to determine applications for leave to appeal against conviction and/ or sentence. In light of that provision and to make more effective use of judicial resources, it is directed that:
(1) Unless directed otherwise, all applications for leave to appeal to the Court of Appeal against conviction and/ or sentence will be heard and determined by a single judge as stipulated in section 83Y(4) of the Criminal Procedure Ordinance, Cap 221 and section 5(2) of the High Court Ordinance, Cap 4.
(2) Such applications will be set down for hearing after filing of the perfected grounds of appeal and written submissions in accordance with paragraphs 7 and 7A respectively hereunder.
(3) Hearings of leave applications to a single judge will, save with leave of the single or Directions Judge, be accorded no more than one hour for each application.
(4) Where there is no opposition to the application for leave and a single judge has, on the basis of the papers, decided to grant leave to appeal he may, without prejudice to a defendant’s right of attendance conferred by section 83U(1) of the Criminal Procedure Ordinance dispense with the attendance of the parties and/or their representatives at the hearing and deliver his decision in court in their absence.
(5) A single judge may, upon an application for leave to which this Practice Direction applies:
(i) grant leave to appeal on all grounds of appeal;
(ii) grant leave to appeal on one or more grounds of appeal and refuse leave to appeal on other grounds (‘limited leave’);
(iii) grant leave on such grounds as appears to him to warrant leave, even though not pleaded in the application for leave; or
(iv) refuse leave to appeal.
(6) If leave or limited leave is granted, the single judge may give such directions for the hearing of the appeal and matters in connection therewith as he sees fit.
(7) Both the Court and the single judge have power, in their discretion, under section 83W of the Ordinance to direct that part of the time during which an applicant is in custody after lodging his notice of application for leave to appeal should not count towards sentence. Those contemplating an appeal should seek advice and they and their legal advisers should remember that a notice of appeal without grounds is ineffective and that grounds should be substantial and particularised and not formulaic. If leave to appeal has been refused by a single judge, it is often of assistance to consider the reasons given by the single judge before making a decision whether, in exercise of the right under section 83Y(3) of the Ordinance, to renew the application. Where an application devoid of merit has been refused by the single judge he may indicate that the Full Court should consider making a direction for loss of time on renewal of the application. However, the Full Court may make such directions whether or not such an indication has been given by the single judge.
7. Perfected Grounds
(1) Perfected grounds of appeal should not be settled by counsel or solicitors unless they consider that they are properly arguable.
(2) Perfected grounds of appeal must be provided as a single document.
(3) Perfected grounds of appeal must be prepared with sufficient precision to enable the Court to identify readily and clearly the issues and the matters relied upon.
(4) Perfected grounds of appeal must commence with a statement of the conviction and/or sentence from which leave to appeal is sought; and a brief statement of the key issues at trial relevant to the application or appeal.
(5) Perfected grounds of appeal must be numbered consecutively and must be specific rather than expressed generally. Where particulars are required to identify the matters relied upon, the particulars must be concise.
(6) Perfected grounds of appeal must state as concisely as possible the complaint which constitutes the ground of appeal. It should not normally be necessary to state the point in more than one or two sentences; thus, for example, specifying the statement or finding of the judge said to be in error and, in its barest essence, what the suggested error was; or what he should have said that he did not say.
(7) Perfected grounds of appeal must not contain submissions in support of the grounds.
(8) Where perfected grounds of appeal are filed which do not accord with these directions, they are liable to be returned for correction with a direction that the case be not listed until a compliant set of perfected grounds is filed.
(9) Perfected grounds of appeal may only be amended with leave of the Court. Proposed amendments must be filed no later than the date prescribed for the filing of the applicant’s/ appellant’s written submissions.
(10) In all cases, counsel briefed to appear in criminal applications and appeals are expected to review the grounds well in advance of the listed date and no later than the date upon which written submissions are filed and to advise the Court as soon as possible if any ground will not be maintained.
(11) Before perfected grounds of appeal are filed, counsel must ensure that the appeal bundle complies with the requirements of paragraph 6 of this Practice Direction and in particular that it incorporates all papers necessary for the determination of the application for leave to appeal.
(12) Instructed solicitors should ensure that counsel, both for the applicant and respondent, are consulted as to the estimate of the length of time likely to be required for the hearing. At the time of the filing of perfected grounds an agreed time estimate should be provided to the Clerk of Court. If there is a difference between the parties on the estimate, this should be stated. As for listing to accommodate the convenience of counsel, see paragraph 9A below.
(13) Should there be any application for the reception of fresh evidence by the Court of Appeal, such application must be made by way of a separate notice.
7A. Written submissions
(1) Written submissions filed in support of and against applications for leave to appeal conviction and / or sentence; in support of and against appeals where leave has been given; and in support of and against applications under s. 81A of the Criminal Procedure Ordinance, Cap 221 shall be filed no later than the dates fixed by the Directions Judge for that case. Where submissions are not filed in time the case may be taken out of the list and re-fixed for another date with appropriate consequences as to costs.
(2) The written submission shall be a single document containing all points that are to be argued.
(3) Save where, pursuant to a direction by the Court, an agreed summary of facts and issues has been prepared, the written submission shall commence with a brief and non-contentious statement of :
(i) the nature of the proceedings below;
(ii) the cases for the prosecution and the defence below;
(iii) the issue(s) at trial; and
(iv) the issue(s) raised upon the application or appeal.
(4) The respondent to an application or appeal need not comply with direction (3) where the summary provided by the applicant is accepted.
(5) The remainder of the written submission must then provide succinct and precisely couched points in support of (or against, as the case may be) the application or appeal, and under a separate heading devoted to, each and every ground of appeal.
(6) Wherever a point is advanced in relation to a ruling, Reasons for Verdict, Summing Up, sentencing remarks, submissions below, admitted facts or exhibits, the passage or exhibit number to which reference is made must be identified in the body or in the margin of the written submissions by reference to the appeal bundle pagination and in the case of exhibits, by reference also to the exhibit number.
(7) Where propositions of law are advanced, the submission must state with precision, in no more than one or two sentences, the proposition advanced and cite only the principal authority or authorities in support of the proposition, identifying the particular passage(s) where the proposition is enunciated and any other passages relied upon. Where in accordance with counsel’s duty, an authority is disclosed which contradicts the proposition, there must be stated succinctly and with precision the basis upon which it is suggested that the authority is to be distinguished.
(8) With the written submissions must be filed an index of those authorities to which counsel intends to refer the Court, grouped under headings devoted to separate issues, with a brief statement of the proposition of law for which each authority is cited, and the passage(s) to be relied upon.
(9) Save with leave of the Court, written submissions must not exceed 15 pages, printed on A4 paper in no smaller than 14pt.size and 11/2 spacing with one inch margins.
(10) A written submission must not be used as a vehicle to advance a ground of appeal which is not contained in the Perfected grounds of appeal.
(11) Perfected grounds of appeal which are not argued in written submissions and adopted orally will be treated as abandoned.
8. Lists of Authorities
Separate lists of the authorities intended to be relied upon at the hearing should be supplied to the Clerk of Court, and not by fax, by both the applicant and the respondent two clear days before the date of hearing. At the same time each should exchange his list with the other.
9. General
(a) Applicants and their legal representatives are required to take all the steps necessary to bring on an application with due diligence. Delay should be avoided and undue delay may be considered a dereliction of duty by the counsel or solicitor concerned.
(b) All applications will be monitored by the Directions Judge to ensure that they proceed with expedition and he may from time to time give directions to effect this. Upon the filing of perfected grounds or where perfected grounds have not been filed in the time stipulated, the Directions Judge will where necessary give directions as to the time allowed for oral argument and as to the filing of written argument. Directions as to written argument in applications for leave to appeal against sentence will be given only in applications of particular complexity.
(c) All communications by or on behalf of the applicant, or the respondent to any application, which are sent to the Clerk of Court’s office should be copied to the other side.
9A. Listing and adjournments
Where possible, regard will be had to the existing commitments of counsel in relation to the listing of applications for leave to appeal and of appeals. However, the Court of Appeal takes precedence over all lower courts. Wherever practicable, a lower court will have regard to this principle when making arrangements to release an advocate to appear in the Court of Appeal. In the case of difficulty, the lower court should communicate with the Registrar of the High Court. In general, counsel’s commitment in a lower court will not be regarded as a good reason for failing to accept a date proposed for hearing by the Court of Appeal. The same approach is applicable when the Court of Appeal is required to fix a date for completion of a part heard appeal.
10. Callovers
The Directions Judge will, as required, list criminal appeals for callover at 10 a.m. each Monday. Solicitors requiring directions may upon application to the Clerk of Court to list cases for callover. Parties who consider adequate time has not been allowed for oral argument must list the application for callover.
11. The powers to be exercised by the Directions Judge as mentioned above may also be exercised by the Registrar of High Court.
12. This Practice Direction supersedes the previous Practice Direction 4.2 on Criminal Appeals to the Court of Appeal dated 30 October 2014.
13. This Practice Direction shall take effect on 11 March 2019.
Dated this 19th day of February 2019.
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(Geoffrey Ma) |