The Queen v. Wu Kam Ming and Others

CAAR000015/1986

BETWEEN

Coram: Hon. Li, V.-P., Yang J.A. & Power J.

Date of Hearing: 29 October 1986

Date of Ruling: 29 October 1986

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RULING

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Li, V.-P.:

1. This is an application for review of the sentences of 7 respondents who were sentenced on 28th May 1986.

2. On 25th July 1986 the Attorney General made an application to a single judge for leave to apply out of time, for a review of the sentences and to attach evidence of the accomplice in the proceedings.

3. On 11th August the Registrar conveyed to the Attorney General the order by Sir Alan Huggins, the Acting Chief Justice, granting leave to apply out of time and for review. Leave to attach evidence of the accomplice was refused. The application was to be filed within 7 days.

4. On 12th August the Attorney General filed his formal application to review the sentences.

5. Before us, the respondents filed a motion to set aside the order of the Acting Chief Justice on the ground that such application out of time to review should be made inter partes. The second ground was that a single judge has no jurisdiction to grant leave to an application out of time. The third ground was that the application must be set aside because no explanation had been given for the delay in filing the application. It was argued that owing to the extra-ordinary nature of this jurisdiction the time limit imposed should be strictly observed.

6. It was submitted thatwhere the Ordinance did not make express provision an application should be made inter partes. It was also submitted that the single judge had no jurisdiction to entertain such an application ex parte.

7. Counsel for the Crown contended that this court had no jurisdiction to entertain this motion since there had not been an appeal. Further the Ordinance provided that a single judge of the Court of Appeal had full power to deal with these applications.

8. Our attention was drawn to section 81 of the Criminal Procedure Ordinance, Cap. 221 which provides:

"The Attorney General may with leave of the Court of Appeal, applies to the Court of Appeal for review of any sentence passed by any court other than the Court of Appeal on ground that the sentence is not authorised by law, is wrong in principle, or is manifestly excessive, or manifestly inadequate."

Sub-section 2 of the same section provides:

"An application under sub-section I shall be filed with a Registrar within 21 days or within such further time as the Court of Appeal may allow, etc. etc."

9. Section 83Y sub-section 2 paragraph (h) provides the powers (that is the power of the Court of Appeal):

"To give leave to apply for the review of a sentence under section 81A."

10. To make the proposition even more apparent our attention has been drawn to section 35 of the Supreme Court Ordinance. This refers to the power of a single judge. Section 35 sub-section 2 provides

"Subject to section 4 in pursuant of the criminal jurisdiction of the Court of Appeal any power of the Court of Appeal not involving the determination of the appeal may be exercised by a single judge in the same manner as it may be exercised by the Court of Appeal and subject to the same provisions."

Sub-section (4) provides:

11. In the present case argued Crown Counsel a single judge had already exercised the power of the Court of Appeal. There had not been an appeal to a higher tribunal, namely the Privy Council. Even if the single judge were wrong the only remedy was to go to the Judicial Committee of Privy Council. In short, this court is now functus officio.

12. There is force in the argument of Crown Counsel. We are bound by the decision of the single judge who exercised the power that vested in this Court when he granted leave. That should be the end of the matter.

13. However, we do feel that in a case of this nature although it may be the eetablished practice to apply to a single judge, the better practice would be by way of inter parte applications.

14. We appreciate that when an appellant appeals against his sentence out of time, he can give notice of appeal ex parte to a single judge. The judge may either grant or refuse leave. But here different considerations arise. When a person has been sentenced to a term of imprisonment however manifestly inadequate, the Attorney General has a prescribed time to apply for a review. When he fails to apply within time the person convicted has a reasonable expectation that he will serve the determinate sentence. Otherwise the Attorney General may apply without the convicted person being heard at any time up to a date before the expiration of his sentence. That may be unjust to him.

15. We are not saying that the respondents suffer an injustice in this case. We are simply stating our opinion that it is certainly an arguable case that such application should be by way of inter parte proceedings.

16. As to the lack of explanation for the delay we feel that an explanation must be given. An appellant when he applies out of time must file an affidavit explaining the delay. It is a better practice that the Attorney General should be put in the same position. He should at least give reasons why the application was delayed until it is out of time.

17. What we have said on the desirability of inter partes proceedings is biter. We are functus officio. We have no jurisdiction to entertain this motions. For this reason we allow the application for review of sentence to proceed.

Representation:

Simon Westbrook (D.L.A.) for D1, D2, D3 & D7

John Necholas (D.L.A.) for D4, D5 & D6

Hodge & Casewell for Crown