Case Document

100%Judiciary

[ English Translation – 英譯本]

CACC 365/2016

[2018] HKCA 98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 365 OF 2016

(ON APPEAL FROM HCCC 403/2015)

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BETWEEN
	HKSAR	Respondent
	and
	TANG TIK HUNG（鄧荻雄）	Applicant

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Before:

Hon Yeung VP and Cheung and Pang JJA in Court

Date of Hearing:	7 February 2018
Date of Judgment:	16 March 2018

JUDGMENT

Hon Yeung VP (giving the Judgment of the Court)

Introduction

1.On 17 November 2016, the applicant (Tang Tik Hung) was convicted after trial for one count of trafficking in a dangerous drug and one count of possession of a dangerous drug, and was sentenced to a total of 24 years’ imprisonment.

2.The applicant applied for leave to appeal against conviction on 28 November 2016. The application was fixed to be heard by a full bench of the Court of Appeal on 7 February 2018.

3.During the intervening period, the applicant was in the custody of the Correctional Services Department. On 30 November 2017, the Commissioner of Correctional Services informed the court that the applicant had passed away because of an illness in a hospital on 29 November 2017.

4.This court has to consider how to deal with the application for leave to appeal which has already been made by the applicant.

5.Sections 82 and 83G of the Criminal Procedure Ordinance, Cap 221 of the Laws of Hong Kong (the Ordinance) confer the right of appeal on a convicted person so that he may appeal to the Court of Appeal against his conviction or sentence. The Ordinance has not laid down how the appeal against conviction or sentence should be dealt with if the person convicted or sentenced dies after applying for leave to appeal.

6.In dealing with provisions similar to sections 82 and 83G of the Ordinance, the English Court of Appeal has clearly stated that if a convicted person who has lodged an appeal against conviction or sentence dies, his application will automatically terminate and become abated (see Stuart‑Smith LJ’s judgment in R v Maguire [1992] QB 937, 945D-F, and cases such as R v Kearley (No 2) [1994] 1 WLR 555 and R v Jefferies [1969] 1 QB 120).

7.In R v Rowe [1955] 1 QB 573, the English Court of Criminal Appeal clearly stated that if a convicted and sentenced person who lodged an appeal died before the appeal hearing, his widow could not proceed with the appeal on the ground of clearing her husband’s name because she had no legal interest in the matter.

8.The English Court of Appeal also found that even if a third party would be affected by the result of the appeal against conviction, that third party should pursue the matter by way of other procedures (see R v Maguire above). The above decisions were considered to be unfair under certain circumstances, and therefore in 1995, section 44A was added to the Criminal Appeal Act 1968 of the United Kingdom so that the Court of Appeal has the power to permit an appeal against conviction or sentence to commence or continue even after the appellant’s death.

9.If the Court of Appeal follows the English precedent cases, the application for leave to appeal already lodged will automatically terminate and abate because of [the applicant’s] death, and this court will have no jurisdiction to hear this appeal, and must indicate that “the proceedings of this appeal have terminated upon the applicant’s death”. This is the decision that Miss Hermina Ng, Senior Public Prosecutor, has asked of this court.

10.The Hong Kong Court of Final Appeal (CFA) has given the final decision on how to deal with an appeal where a convicted person having obtained leave to appeal to the CFA had passed away before his appeal was heard. It was held that when a convicted person having his appeal dismissed by the Court of Appeal obtained leave to further appeal to the CFA, notwithstanding his subsequent death before the final appeal was heard, the CFA retained the discretion to hear his appeal and might order a living person to substitute for this deceased appellant (see HKSAR v Cheng Chee Tock Theodore (2015) 18 HKCFAR 292).

11.As Miss Ng emphasised, the CFA exercised the power under section 31 of the Hong Kong Court of Final Appeal Ordinance, Cap 484 of Laws of Hong Kong, and submitted:

“(1) Once the section 31 right was exercised, the appeal was treated as pending. Section 31 was not expressed as a right of appeal limited to a convicted person since the right extended also to any party to the proceedings, including the Secretary for Justice. Where leave to appeal was granted by this Court, there was a strong public interest in such an appeal being heard, which went beyond that of an individual appellant (R v Jefferies [1969] 1 QB 120; R v Kearley (No 2) [1994] 2 AC 414; R v Smith [2004] 1 SCR 385 distinguished).

(2) The proper construction of section 31 in the light of its context and purpose of the Ordinance is:

Having regard to the Court’s role as the final appellate court hearing appeals on important points of law, once a party to the proceedings had invoked the Court’s jurisdiction under section 31 by making an application for leave to appeal under section 33, the Court retained jurisdiction to hear a final criminal appeal notwithstanding the subsequent death of a party and had a discretion whether to do so or not. This conclusion was reached as a matter of construction of the relevant statutory provisions in the Ordinance and not by reference to the constitutional arrangements regarding access to the courts (Hin Lin Yee v HKSAR (2010) 13 HKCFAR142 considered).”

12.Although the decision of the CFA in Cheng Chee Tock Theodore above was based entirely on the construction of section 31 of the Hong Kong Court of Final Appeal Ordinance, the essence of the decision also emphasised that the appellant had already obtained leave to appeal to the CFA before his death, and once leave was granted, it meant there was a strong public interest in the appeal being heard. The CFA had reservations about the decision that an appeal would automatically terminate and abate if the appellant passed away before the appeal hearing by the Court of Appeal. The CFA also doubted the way that the Court of Appeal in England dealt with this issue.

13.The Court of Final Appeal made the following observation at paragraph 37 of its judgment:

“Mr Cooney submitted that it would be ‘inconsistent and odd’ if a right of appeal were to survive where an appellant died while appealing to this Court but to abate in the same situation in a pending appeal to the Court of Appeal. This, of course, assumes that an appeal to the Court of Appeal will abate on the appellant’s death, which may or may not be a correct assumption” (Emphasis added).

14.It is also stated expressly at note 33 of the judgment:

“Any inconsistency or oddity would be removed if the relevant statutory provisions governing intermediate appeals were to be construed in a manner similar to section 31 of the Ordinance.”

15.The CFA obviously did not agree with the decision of the English Court of Appeal in cases such as Kearley and Jefferies, and even opined that the way adopted by the Supreme Court of Canada in dealing with the same issue in R v Smith [2004] 1 SCR 385 was more appropriate.

16.In R v Smith above, the Supreme Court of Canada held that the court retained the discretion, in the interests of justice, to continue to deal with the case after the appellant’s death, but the exercise of such discretion should be rare. In their view:

“Once the appeal is properly constituted with a live appellant, the court must then consider whether to exercise its jurisdiction to hear the appeal despite it being rendered moot by the death of the accused, or to abate the appeal. The general test is whether there exist special circumstances that make it ‘in the interests of justice’ to proceed. That question may be approached by reference to the following non-exhaustive factors: the presence of a proper adversarial context; the strength of the grounds of the appeal; the existence of special circumstances that transcend the death of the individual appellant/respondent, such as a legal issue of general public importance, a systematic issue related to the administration of justice, or collateral consequences to the family of the deceased, to other interested persons, or to the public; the expenditure of limited judicial (or court) resources; and whether continuing the appeal would go beyond the judicial function of resolving concrete disputes and involve the court in free-standing legislative-type pronouncements more properly left to the legislature itself. Those cases in which it will be proper to exercise jurisdiction will be rare and exceptional.”

17.Although the CFA pointed out that the question of how the intermediate appeals made to the Court of Appeal were to be dealt with was based on the construction of a different legislation, the inclination the CFA had expressed was obvious.

18.If the Court of Appeal rules that the appeal against conviction or sentence automatically terminates and abates because the applicant who has applied for leave to appeal dies before the hearing, and as a result the appeal cannot continue, the court in such a case would have no jurisdiction to deal with the appeal even if there is a strong public interest in the case. Such a decision would obviously go against the rationale behind the decision of the CFA in Cheng Chee Tock Theodore, and indirectly deprive the CFA of jurisdiction over the case because if it was correct for the Court of Appeal to find the appeal automatically terminated and abated on the appellant’s death before the hearing, the CFA could not exercise any jurisdiction over the case.

19.Although under exceptional circumstances and having been satisfied that a point of law of great importance or grave injustice is involved in a case, section 83P of the Ordinance may be invoked to resolve the problem, intervention by the executive authorities is required under section 83P before the case can be placed before the court. In our view, the jurisdiction of the court over cases should be unconditional and must not be based on the discretion of the executive authorities.

20.In the aforesaid circumstances and in order to reflect the rationale behind the decision of the CFA in Cheng Chee Tock Theodore, this court considers that the relevant decisions made by the English Court of Appeal should not be followed. In our view, if a convicted and sentenced person dies after applying for leave to appeal against conviction or sentence, the Court of Appeal retains the discretion to consider all relevant factors before deciding if the application for leave should continue or automatically terminate and abate. We find that the factors set out at para 51 in the judgment of ChengCheeTock Theodore and in Smith most helpful in guiding the court to decide how to exercise the discretion.

21.The facts of the present case are simple and straightforward. The applicant was convicted of one count of “trafficking in a dangerous drug” and one count of “possession of a dangerous drug” and sentenced to 24 years’ imprisonment. Before his death, he had made an application for leave to appeal against conviction. After his death, no family member has indicated that the application for leave to appeal already made by the applicant would continue. The incident carries no importance to the public. No other person would be affected. We have also considered the merits of the case, and do not think that we should exercise the discretion to continue to deal with the applicant’s application for leave to appeal after his death. Therefore, this court declares that the application for leave to appeal made by the applicant and the related legal proceedings terminate and abate on the applicant’s death.