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 functusofficio then, in the words of the English Court of Appeal in Medway at page 89...