HKSAR v. Tam Tak Keung Sammy

[ENGLISH TRANSLATION – 英譯本]
CACC 210/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 210 OF 2015

(ON APPEAL FROM DCCC NO 879 OF 2013)

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REASONS FOR JUDGMENT

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

Introduction

1.The applicant [Tam Tak Keung] together with another 3 defendants were charged with 49 charges of offences, of which 21 charges were against the applicant, namely charge 15 to charge 35, dealing with property known or believed to represent proceeds of an indictable offence which is commonly known as “money laundering”.  The applicant denied all 21 charges and was tried in the District Court before H.H Judge Josiah Lam [the trial judge].

2.On the 17^th of June 2015, the trial judge convicted the applicant of all 21 charges.  On the 22^nd of June 2015, the applicant applied to the Court for leave to appeal against his conviction.  Defence Counsel Mr Li advanced multiple grounds of appeal in support of the application.  Mr Li had also applied for bail pending application for leave to appeal.  On the 13^th of November 2015, the bail application was refused by the Court of Appeal.

3.On the 10^th of March 2016, a single judge of the Court of Appeal refused the applicant’s application for leave to appeal against conviction.  But the applicant made a renewed application on the 22^nd of March 2016 asking the court once again to grant him leave to appeal against his conviction.

4.Mr Li filed perfected grounds of appeal on the 25^th of April 2016 setting out arguments in respect of the actus reus and mens rea of the applicant.  On the 11^th of May 2016, the applicant’s renewed application for leave to appeal against conviction was listed for hearing on the 4^th of October 2016.

5.On the 7^th of September 2016, Mr Li filed a skeleton submission with the court setting out in detail the grounds of appeal put forward by the applicant.  On the 15^th of September 2016, Mr Li further filed a supplementary submission to clarify some contents of the said skeleton submission.  All of these showed that the applicant’s application for leave to appeal would proceed on the 4^th of October 2016 as scheduled.

6.At 4:47 pm on 30^th of September 2016, that is one working day before the hearing, counsel representing the applicant issued a notice of abandonment of appeal to the Registrar pursuant to section 39 of the Criminal Appeal Rules.  Therefore, the applicant’s appeal was instantly dismissed by the Court of Appeal. However, what this court found extremely unsatisfactory about the way the applicant together with his legal team handle the appeal was that they were seriously wasting the court’s time.  Therefore, this Court decided to handle in open court the issues arising out of this matter and we would first start with the facts of the case in brief.

7.Between the years of 2010 and 2011, a staff member of Hong Kong Life Insurance Limited (“Hong Kong Life”) defrauded Hong Kong Life of a substantial amount of money by a check with false representation.  Part of the proceeds obtained by deception (more than 10 million Hong Kong dollars) was deposited directly or indirectly into a bank account under the name and control of the applicant on a number of occasions.  Part of the proceeds deposited into the applicant’s account was further transferred to another account under the name and control of the applicant.  Eventually, most of the money deposited into the applicant’s account was withdrawn in cash or by transfer within a short period of time leaving less than one million dollars of the proceeds.

8.There was no evidence whatsoever to show that the applicant had any reason to receive/withdraw the money in question.  In the original trial, the applicant did not testify and the evidence he called could not possibly justify his receiving/withdrawing the substantial amount of proceeds in connection with the case.

9.The trial judge found that the applicant had handled the proceeds and the applicant had reasonable grounds to believe that the proceeds was “black money”.  It was definitely a correct and safe conviction.  The fact that the applicant abandoned his appeal eventually also reflected his acceptance of the conviction as correct and safe. Moreover, the grounds of appeal advanced by Mr Li were not reasonably arguable much less capable of successfully reversing the conviction entered against the applicant.

10.A convicted and sentenced defendant certainly has the right to lodge an appeal against his conviction and/or sentence.  However, this right shall be exercised in a discreet and responsible manner.  An indiscreet and arbitrary exercise of the right to appeal is an abuse of the judicial process, a waste of judicial time and public resources.  It would also cause delay to cases that genuinely require handling.

11.Section 39 of the Criminal Appeal Rules permits the appellant to notify the court of his abandonment of appeal any time before the hearing.  However, in the case where an appeal is not supported by any ground, it does not mean the appellant can simply abandon the appeal before the appeal hearing and the matter will be gone without any adverse consequence caused to the appellant.  The legal team representing the appellant has the responsibility to ensure that the grounds of appeal advanced on behalf of the defendant are arguable.  They should not be aiding, abetting or inciting the defendant to lodge an appeal on grounds that are neither here nor there and unarguable.  Such aiding, abetting or inciting not only would affect the appellant adversely but is also a breach of the duty a legal team owed to the court.  When a legal team representing the appellant discerns that the grounds of appeal advanced no longer has merit, they have the duty to notify the court as soon as possible so that sufficient time would be available for the court to make appropriate arrangements to avoid wasting resources.

12.In the present case, the supporting evidence for the commission of crime on the part of the applicant was not only comprehensive but also uncontested.  In addition, the applicant was unable to show any grounds of defence in respect of the relevant charges against him not to mention having the foundation to reverse the conviction which was reached on the basis of uncontested evidence.

13.This court reiterates that if an appellant is unable to advance arguable grounds to support his appeal and yet insists on making a renewed application for leave to appeal after the original application was refused by a single judge of the Court of Appeal, the Court of Appeal is entitled to order him to pay for the costs incurred by the prosecution and/or that the time during which he is in custody pending the determination of his appeal shall not be reckoned as part of the term of any sentence to which he is for the time being subject pursuant to section 83W of the Criminal Procedure Ordinance.

14.This court is of the view that the above order should be called for taking into account the background of this case.

15.Apart from dismissing the appellant’s application for leave to appeal, this court also ordered that two months of the time during which the appellant was in custody pending determination of his appeal shall not be reckoned as part of the term of the sentence to which he was for the time being subject.  The applicant shall also pay costs to the Prosecution in respect of the appeal which is to be taxed.

Mr Derek C H Wong, Senior Public Prosecutor of the Department of Justice for the Respondent

Mr Tony C Y Li, instructed by Yung & Co., Simon C.W. for the Applicant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung, Barrister-at-law.