HKSAR v. Shoki Fatuma Ramadhani

CACC 187/2014

[2018] HKCA 192

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 187 OF 2014

(ON APPEAL FROM HCCC NO. 336 OF 2012)

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Before :  Hon Lunn VP, Macrae and McWalters JJA in Court

Date of written submissions :  Applicant - 2 February 2018;  Respondent - 27 February 2018.

Date of Judgment :  11 April 2018

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J U D G M E N T

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

1.By a Notice of Motion, filed with the Court on 2 February 2018, on behalf of the applicant Mr Donald invited this Court to certify, pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, (“the Ordinance”) that two points of law of great and general importance arise from the decision of this Court, dated 30 March 2015, dismissing by a majority the application for an extension of time for leave to appeal against sentence made on 28 November 2012 by Toh J, namely, inter‑alia, that US$2,600 found in the possession of the applicant be forfeited.

2.Mr Donald identified the two points of law as being encompassed into questions:

Question 1

“ During Forfeiture Proceedings, can an order be made granting the prosecution’s application where, a) the legal basis for the order sought was not identified; and b) no evidence directly relating to the property liable to forfeiture was adduced in support of the prosecution’s application.”

Question 2

“ During Forfeiture Proceedings, can a Judge grant an order without a) first informing the defendant/respondent to the application that a prima facie case for an order of forfeiture has been satisfied by the prosecution; and b) informing the defendant/respondent that the burden had passed to him to establish a case as to why judicial discretion should be exercised in his favour (i.e., against the granting of a Forfeiture Order).”

The respondent’s submissions

3.For the respondent, Mr Ned Lai opposed the application for leave to certify point of law great and general importance out of time.  He submitted that no good or satisfactory explanation had been given by the applicant to account for the very lengthy delay of about 33 months in making the application.  Furthermore, he submitted that no points of law of great and general importance arose from the decision of this Court.

4.By letters, dated 21 March 2018, the parties indicated that they consented to the Court dealing with the application on the papers.

5.There is no dispute that the application is made out of time.  Section 33(1) of the Ordinance requires an application for leave to appeal to the Court of Final Appeal shall be made within 28 days from the date of the decision of this Court.  Paragraph 3 of Practice Direction 2.2 “Criminal Appeals to the Court of Final Appeal” requires that an application for a certificate to this Court that a decision of this Court involves a point of law great and general importance “…should be made immediately after judgment is given from which the appeal is to be brought.”  Paragraph 4 of Practice Direction 4.3 “Criminal Appeals in the Court of Appeal.  Handing down Judgments” requires that any application for such a certificate “…should be made within 7 days of the handing down of the judgment from which the appeal is to be brought.”

6.By a “Notice of Refusal of Legal Aid”, dated 22 April 2015, the applicant was informed of the refusal of her application “for legal aid to appeal to the Court of Appeal (sic) against Confiscation Order (Out of Time)”.  In an affirmation filed with the Court on 2 February 2018, the applicant asserted that after the decision of this Court had been handed down on 30 March 2015 “I lodged my application with the Court of Final Appeal but I do not remember the date”.  However, no evidence of any such application has been provided to this Court.

7.By a letter, dated 8 May 2015, in response to a letter from the applicant, dated 27 April 2015, the Hong Kong Bar Free Legal Service Scheme informed the applicant that in light of this Court’s refusal to grant an extension of time in which to appeal the order of forfeiture “…your only remedy is to try to make an application to the Court of Final Appeal for leave to appeal.”  Further, the applicant was advised to apply for legal aid.  The applicant said that she had identified a counsel from the Hong Kong Bar List and had written many times seeking his help.  However, the applicant did not provide the Court with any copies of such letters or indicate what, if any, response she received.

8.In an affirmation, filed with the Court on 2 February 2018, Mr Philip Swainston informed the Court that he had been assigned by the Director of Legal Aid to represent the applicant in her application.  In a chronology of what was described as ‘Legal Aid Events’, Mr Swainston said that the applicant had first made an application for the grant of legal aid to appeal to the Court of Final Appeal on 6 July 2017.  That application was refused on 16 August 2017 but, after the applicant initiated proceedings to reverse that decision on 20 September 2017, a legal aid certificate was issued to the applicant on 24 November 2017.

9.The Court has received no explanation why it was that, having been refused the grant of legal aid on 22 April 2015, the applicant did not make any further application until 6 July 2017, namely more than 26 months later.

10.In all the circumstances, we are satisfied that the applicant has advanced no reasonable explanation whatsoever for the quite extraordinary delay in initiating these proceedings.

11.The requirements that applications be made within prescribed periods serves the legitimate purpose of ensuring that it is possible to constitute the same panel as made the decision, that the relevant files are available to the Court and that the Court has a working memory of the proceedings in respect of which the application is made.  Of course, the longer the delay the greater the difficulties that the Court face. All of those purposes were thwarted by the lapse of time between the handing down of the decision and the filing of this application.

Conclusion

12.Accordingly, in all the circumstances, we refuse the application for leave to proceed with the application out of time.

Mr Ned Lai, SADPP, of the Department of Justice, for the respondent.

Mr Richard Donald, instructed by Tanner De Witt, assigned by Director of Legal Aid, for the applicant.