PRACTICE DIRECTION – SL4
PRACTICE NOTE (CRIME: SENTENCE: LOSS OF TIME)
Handed down: 9 October 2013
Hon Stock VP:
1. This Note is issued after consultation with the Chief Judge of the High Court and all other members of the Court of Appeal.
2. Section 83W(1) of the Criminal Procedure Ordinance, Cap 221 provides:
“The time during which an appellant is in custody pending determination of his appeal shall, subject to any direction which the Court of Appeal may give to the contrary, be reckoned as part of the term of any sentence to which he is for the time being subject.” (Emphasis added).
3. The emphasised phrase empowers the Court to make what has become known as an order for loss of time.
4. Over time, the provision has been invoked with varying degrees of regularity and in recent times quite rarely. However, all judges of the Court of Appeal have become increasingly concerned at the proportion of wholly unmeritorious applications for leave to appeal conviction and/or sentence coming before the Court, advanced by unrepresented as well as represented applicants in criminal cases, resulting in a significant waste of judicial and administrative resources and in serious delays caused to meritorious appeals.
5. The papers presented in support of an application for leave have to be read by all the judges assigned to hear and determine the application. This involves reading not only the Grounds of Appeal, the written arguments, the Summing-Up or Reasons for Verdict and/or the sentencing remarks but, frequently, transcripts and authorities as well. The engagement of judges in such a task when the application transpires to be unarguable, constitutes an enormous waste of judicial time, administrative time and public money and the delay caused to meritorious applications is often a delay occasioned to applicants in custody pending appeal.
6. The object of the statutory provision, which is not unique to this common law jurisdiction, is to deter unmeritorious applications and invocation of the power in appropriate circumstances has received the endorsement of the Court of Final Appeal: see Chau Ching Kay, Nauthum v HKSAR [2003] 1 HKLRD 99 paras 52 - 79.
7. The purpose of this Note is to remind practitioners and applicants of the existence of the power and of its rationale and of the fact that wholly unmeritorious applications will normally be met with an order for loss of time.
8. The main criterion for the exercise of the power is that there is total lack of merit in the application.
9. It should be noted that the fact that the applicant is acting under advice is not of itself a bar to an order for loss of time. In this regard practitioners are reminded of the statement in Chau Ching Kay at para 69 that:
“It would be wrong in principle to say that the court should not as a matter of course consider ordering loss of time [where the application is made pursuant to legal advice]. For the court would then be delegating its discretion and subjecting it to the decision of counsel. This cannot be right. In appropriate cases where it is plain that the application is totally unmeritorious, it is the duty of the court to consider directing loss of time even though the application is made pursuant to legal advice. How much weight should be given to this fact is a matter for the court having regard to all the circumstances of the case.”
10. The Court has also become concerned at the frequency with which unmeritorious allegations of incompetence are made against counsel and solicitors. Such an allegation causes the practitioner whose reputation is thus impugned to expend considerable effort in the preparation of affidavits or affirmations and, often, in attending the hearing of the application. Although allegations of flagrant incompetence will always be examined carefully, the frequency of wholly unwarranted allegations has increased, both at the hands of represented and unrepresented applicants. An unwarranted assertion of incompetence will normally attract an order for loss of time.
11. In the case of applicants who are unrepresented and whose application first comes before a single judge, the single judge has himself the power to order loss of time. Where an application has been refused by a single judge and the application is nonetheless renewed and the court before which the renewed application is made also takes the view that the application is wholly without merit, an order for loss of time will ordinarily be made.
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(Frank Stock) |
