IN THE COURT OF FINAL APPEAL
Application for Leave to Appeal
FAMC No. 3 of 1997
||TANG SIU MAN
Appeal Committee: Chief Justice Li, Mr Justice Litton PJ and Mr Justice Ching PJ
Date of Hearing: 23 September 1997
Date of Determination: 23 September 1997
Chief Justice Li:
1. This is the determination of the Appeal Committee upon an application for leave to appeal brought under section 32 of the Hong Kong Court of Final Appeal Ordinance ("the Ordinance").
2. On 23 May 1996, the Applicant was convicted after trial before Saied J and a jury of one count of manufacturing a dangerous drug and one count of trafficking in a dangerous drug. On 29 May 1996, he was sentenced to 28 years and 24 years' imprisonment for the respective counts to be served concurrently.
3. He applies to the Court of Appeal for leave to appeal. On 8 July 1996, the Court of Appeal (Power V-P, Mayo JA and Wong J) refused him leave to appeal against conviction. They reduced the sentence on the manufacturing count to 25 years.
4. Upon the Applicant's notice of motion filed on 5 August 1997, the Court of Appeal (Power V-P, Mortimer V-P and Wong J) on 14 August 1997 granted an order, certifying that a point of law of great and general importance is involved in the decision.
5. By notice of motion filed on 23 August 1997, the Applicant applied to this Court for leave to appeal and the grounds in support were set out. At the same time, the Applicant applied to this Court by summons seeking a determination of (i) what is the time limit for an application for leave to appeal to the Court and (ii) if, on such determination, his application is out of time, an extension of time for his application.
The certified point of law
6. The point of law certified by the Court of Appeal was not set out in its order made on 14 August 1997. We find it set out in the grounds in the Applicant's notice of motion filed on 23 August 1997 for leave to appeal to this Court. It is in these terms:
"Whether the trial judge having decided to direct to direct the jury to treat the Applicant as a man of good character in spite of a previous conviction, is then obliged to give a direction on both credibility and propensity?"
7. At the trial, the Applicant gave evidence. The direction given by the judge was in these terms:
"While on this issue of credibility, you will recall that the defendant admitted that he had one previous conviction for Assault occasioning actual bodily harm for which he was placed on probation for a year when he was aged twenty. That conviction appears to have been for a not serious assault and it certainly did not involve dishonesty, it was straight forward simple assault. I expect that you would like to put that previous conviction aside and treat him, effectively, as a person of good character. Of course, good character cannot amount to a defence, but as with any man of good character, it supports his credibility."
The time limit
8. Part III of the Ordinance deals with appeals to this Court in criminal matters. It is convenient to set out sections 31, 32 and 33 of the Ordinance as amended by the Hong Kong Court of Final Appeal (Amendment) Ordinance No 120 of 1997 which substituted "Court of First Instance" in place of "High Court" in these provisions.
Section 31 Criminal appeals
An appeal shall, at the discretion of the Court, lie to the Court in any criminal cause or matter, at the instance of any party to the proceedings, from -
(a) any final decision of the Court of Appeal;
(b) any final decision of the Court of First Instance (not being a verdict or finding of a jury) from which no appeal lies to the Court of Appeal.
Section 32 Leave to appeal
(1) No appeal shall be admitted unless leave to appeal has been granted by the Court.
(2) Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done.
(3) Where the Court of Appeal or the Court of First Instance declines to certify as mentioned in subsection (2), the Court may so certify and grant leave to appeal.
(4) The Court may when granting leave under subsection (1) impose a timetable on any party for the prosecution of the appeal and may either on the application of a party or of its own motion vary that timetable.
Section 33 Application for leave to appeal
(1) An application to the Court for leave to appeal shall be made within 28 days from the date of the decision of the Court of Appeal or the Court of...