HKSAR v. Yuen Siu Wing

CACC 61/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 61 OF 2014

(ON APPEAL FROM DCCC NO. 1082 OF 2013)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.On 14 February 2014, the applicant (Yuen Siu Wing) was convicted in the District Court of one count of trafficking in a dangerous drugs and was sentenced to 4 years and 3 months’ imprisonment.  The applicant applied for leave to appeal against conviction and, on 14 April 2015, his application was dismissed by a single Justice of the Court of Appeal (Yeung VP) in the exercise of his power under section 83Y(2) of the Criminal Procedure Ordinance (Cap. 221) (“CPO”).

2.The applicant renewed his application for leave to appeal against conviction under section 83Y(3) of CPO before the Court of Appeal and on 24 June 2015, the Court of Appeal (Yeung VP, Poon and Pang JJA) dismissed the renewed application and further ordered, under section 83W of CPO, a “loss of time” of 4 weeks.  The Court of Appeal handed down the judgment on 3 July 2015.

3.Almost 17 months later, by a Notice of Motion dated 17 November 2016, the applicant, represented by Mr PY Lo of counsel on the instruction of ONC Lawyers, applied for a certificate, pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), that the following point of law of great and general importance is involved in the decisions of the Court of Appeal, namely:

“May a single Justice of Appeal who refused leave to appeal to the Court of Appeal, lawfully sit as a member of the panel if the applicant seeks to have his application determined by the Court of Appeal?” (Question 1)

4.On 6 December 2016, the Notice of Motion was amended to include another point also said to be a point of law of great and general importance, namely:

“Whether it is in breach of Article 11(4) of the Hong Kong Bill of Rights (Ordinance) for a single Justice of Appeal to refuse leave to appeal to the Court of Appeal without giving reasons?” (Question 2)

5.The Court of Final Appeal was confronted with a question which is identical to Question 1 in HKSAR v MD Emran Hossain FACC No. 16 of 2016 and in the judgment handed down on 16 December 2016, the Court of Final Appeal answered the question as follows:

“Subject to the rules concerning disqualification of a judge from sitting by reason of bias, whether actual or apparent, a single Justice of Appeal who has refused leave to appeal to the Court of Appeal under section 83Y of the CPO may lawfully sit as a member of the panel if the applicant seeks to have his application determined by the Court of Appeal.”

6.There is no suggestion that the single Justice of Appeal who dismissed the applicant’s application on 14 April 2015 was biased and the decision of the Court of Final Appeal in ED Emran Hossain (supra) is therefore final and conclusive.  Question 1 is unarguable.

7.In his written submission, Mr Lo suggests that “the Court of Final Appeal had not determined the following issue associated with Question 1”, namely:

“Whether a single Justice of Appeal who had heard and determined an applicant’s application for leave to appeal in exercise of the power of the Court of Appeal vested in him under section 83Y(2)(a) of the Criminal Procedure Ordinance and in accordance with the procedure set out in Practice Direction 4.2 ‘Criminal Appeal to the Court of Appeal’ paragraph 6A is or has to be regarded as functus officio in respect of the applicant’s application for leave to appeal, and as a result, may not sit as a member of the Court of Appeal hearing and determining the same applicant’s renewed application.”

8.With respect, we are asked to certify Question 1 as a point of law of great and general importance and not an issue associated with Question 1.  If the suggested issue is relevant to Question 1, the Court of Final Appeal would have dealt with it MD Emran Hossain (supra).  In any event, Question 1 had been resolved by the Court of Final Appeal and we are bound by its decision.

9.It is debatable if Article 11(4) of the Hong Kong Bill of Rights Ordinance is engaged at all, but in any event Question 2 is premised on the suggestion that when dismissing the application on 14 April 2015, the single Justice of Appeal had not given any reason.  There is no factual foundation for such a premise.  In fact detailed reasons were given by the single Justice of Appeal for dismissing the applicant’s application for leave to appeal against conviction.

10.It is perhaps worth pointing out that in his affirmation supporting the application, the applicant did not suggest that the single Justice of Appeal dismissed his application without giving reason.  He said at paragraph 5 of his affirmation, “…the single Justice of Appeal heard the application…and dismissed it on the same day without producing reasons for his decisions.”

11.If by “without producing reasons for his decision”, the applicant meant there was no written judgment, the applicant was correct as it was considered not necessary to produce a written judgment on the leave application heard by a single Justice of Appeal.  However detailed oral reasons had been given in open court by the single Justice of Appeal when dismissing the leave application on 14 April 2015 and the applicant had not subsequently asked for a transcript or a tape recording of the hearing which would have contained the reasons for dismissing his application.

12.It is surprising that counsel and solicitors acting for the applicant saw fit not to make any inquiry before suggesting, without proper foundation and wrongly, that the single Justice of Appeal had dismissed the applicant’s application without giving any reason, and thus a breach of Article 11(4) of the Hong Kong Bill of Rights Ordinance and the common law duty to act fairly.  A simple request for the transcript or the tape recording of the hearing would have prevented them from making such an unwarranted allegation.  With respect, they could have acted with a higher degree of prudence. After all, the application is funded by the public as the applicant is legally aided.

13.We are satisfied that the questions posed for our consideration are not arguable and the application for the certificate is dismissed.

Written submission by Ms Janice Cheuk SPP (Ag), of the Department of Justice, for the respondent

Written submission by Mr P Y Lo, instructed by ONC Lawyers, for the applicant