HKSAR v. Kofi Frimpong

CACC 137/2020

[2021] HKCA 1166

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 137 OF 2020

(ON APPEAL FROM HCCC NO 104 OF 2020)

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Before: Hon Zervos JA in Court

Date of Hearing: 6 August 2021

Date of Judgment: 6 August 2021

Date of Reasons for Judgment: 13 August 2021

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R E A S O N S    F O R    J U D G M E N T

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1.The applicant was convicted on his own plea of one count of trafficking in a dangerous drug, contrary to section 4 (1) (a) and (3) of the Dangerous Drugs Ordinance (Cap 134). The particulars of the offence alleged that on 28 February 2019, outside Ground Floor, Nos 37A-37B, Jordan Road, Yau Ma Tei, Kowloon, the applicant unlawfully trafficked in a dangerous drug, namely, 149.4 grammes of a crystalline solid containing 146.4 grammes of methamphetamine hydrochloride. On 13 August 2020 the applicant was sentenced by Deputy High Court Judge Maggie Wong SC to 8 years and 10 months’ imprisonment.

2.By way of a Notice of Application for Leave to Appeal (Form XI) dated 2 September 2020, the applicant applied for leave to appeal against his sentence.  On 24 November 2020, the applicant’s application for legal aid was refused and he proceeded with his leave application in person.  On 19 January 2021, the Court directed that the applicant was to file perfected grounds of appeal and written submissions within 14 days.  However, on 29 January 2021, the Court received a letter from the applicant dated 25 January 2021, indicating that he wished to abandon his application for leave to appeal against sentence.  On 2 February 2021, the Court directed the applicant to file a Notice of Abandonment (Form VII), pursuant to section 39 of the Criminal Appeal Rules (Cap 221A), within 14 days, if his intention was to formally abandon his application for leave to appeal against sentence.  The Court received no Form VII from the applicant prior to the hearing before a Single Judge.

3.Section 39 of the Criminal Appeal Rules reads:

“An appellant may, at any time before the hearing thereof, abandon his appeal by giving notice of abandonment thereof to the Registrar in Form VII, and upon such notice being received by the Registrar the appeal shall be deemed to have been dismissed by the Court of Appeal.”

4.Section 83Y of the Criminal Procedure Ordinance (Cap 221) sets out the powers exercisable by a Single Judge, which reads:

“83Y. Powers of Court of Appeal under Part IV which are exercisable by single judge

(1) The powers of the Court of Appeal under this Part which are specified in subsection (2) and the power to give directions under section 156(5) of the Crimes Ordinance (Cap. 200) may be exercised by a single judge in the same manner as they may be exercised by the Court of Appeal and subject to the same provisions.

(2) The said powers are the following—

(a) to give leave to appeal;

…

(g) to give directions under section 83W(1);

...

(3) If the single judge refuses an application on the part of an appellant or applicant to exercise in his favour any of the powers above specified, the appellant or applicant shall be entitled to have the application determined by the Court of Appeal.

(4) The references in this section to a single judge are to a single judge of the Court of Appeal or of the Court of First Instance.”

5.As clearly stated under subsection (1) the powers of the Court of Appeal as specified under subsection (2) may be exercised by a Single Judge in the same manner as they may be exercised by the Court of Appeal.  The specified powers include giving directions under section 83W(1), which is the loss of time provision.  Section 83W reads:

“83W. Effect of appeal on sentence

(1) The time during which an appellant is in custody pending the determination of his appeal shall, subject to any direction which the Court of Appeal may give to the contrary, be reckoned as part of the term of any sentence to which he is for the time being subject.

(2) Where the Court of Appeal gives a contrary direction under subsection (1), it shall state its reasons for doing so; and it shall not give any such direction where—

(a) leave to appeal has been granted; or

(b) a certificate has been given by the judge of the court of trial under section 82; or

(c) the case has been referred to it by the Chief Executive under section 83P.

(3) Where an appellant is admitted to bail under section 83R, the time during which he is at large after being so admitted shall be disregarded in computing the term of any sentence to which he is for the time being subject.

(4) The term of any sentence passed by the Court of Appeal under section 83A, 83B, 83C, 83I or 83K(4) shall, unless the Court of Appeal otherwise directs, begin to run from the time when it would have begun to run if passed in the proceedings from which the appeal lies.”

6.Even though the power to be exercised by a Single Judge under section 83Y is expressed “to give directions under section 83W(1)”, it would be subject to the other subsections of section 83W, if and when applicable. 

7.The Court of Final Appeal in Chau Ching Kay v HKSAR (2002) 5 HKCFAR 540 has addressed generally the power to order loss of time, and with specific reference to when it is exercised by a Single Judge.  Having noted the relevant statutory provisions in respect of a convicted person’s right to appeal to the Court of Appeal, Chan PJ, with whom the other judges agreed, said:

“54. In my view, the effect of these provisions is this. A convicted person has a right to appeal to the Court of Appeal against his conviction and sentence, but leave of the Court of Appeal is required unless he relies on a ground of appeal which involves a question of law alone or unless a certificate is granted by the trial judge. Where leave to appeal is required, a single judge of the Court of Appeal or Court of First Instance is empowered to hear the application for leave and exercise the same power to grant leave as the Court of Appeal. If a single judge refuses the application, the applicant has a right to ask for his application to be determined again by the full Court of Appeal. The period during which a convicted person is held in custody pending appeal shall be counted as part of his sentence. However, both the single judge and the Court of Appeal have the power to direct that such period or any part thereof may not be counted towards the convicted person’s sentence. This has the penalizing effect of increasing his sentence.

55. There are two safeguards against the exercise of this power of the court. First, if a single judge or the Court of Appeal should order loss of time, the judge or the court has a duty to state the reasons for doing so. Secondly, this power cannot be exercised where leave to appeal has been granted either by a single judge or the Court of Appeal or a certificate has been given by the trial judge or the case has been referred to the Court of Appeal by the Chief Executive. The object in having this restriction is to ensure that only reasonably arguable cases should go to the Court of Appeal. In all these situations, either the case is considered reasonably arguable or there is some other reason for referring the case to the Court of Appeal, the Chief Executive having considered the matter and taken the view that the case should be considered by the Court of Appeal (see s.83P). It is considered that it would not be appropriate that convicted persons in these situations should suffer any loss of time.

56. The purpose of having the power to order loss of time is to deter unmeritorious applications because they would otherwise engage judicial time which may well be better spent on other meritorious cases. The result of wasting judicial time is that meritorious cases would have to be deferred or delayed, thus causing injustice to the parties in those cases, particularly where such parties are held in custody pending appeal.” (Emphasis added)

8.Chan PJ went on to discuss the procedure of screening appeals by a Single Judge:

“59. Section 83Y only permits a single judge to exercise the power to grant leave instead of the full Court of Appeal. It does not require that an application for leave to appeal must first be heard by a single judge. Such a procedure serves two useful purposes: (1) it is aimed at relieving the full Court of Appeal of some of its workload; and (2) it also serves as a screening process for unmeritorious applications.

60. I do not think the single judge procedure is intended to serve as a safeguard for the right of appeal of convicted persons or as a trial run for their applications. The argument that they should have the benefit of the opinion of the single judge and an extra warning from him before proceeding further with their appeals is inconsistent with the presence of a power in a single judge to make orders for loss of time. If counsel’s argument be right, a single judge should never make such an order or would never have the opportunity of doing so. What then is the purpose of conferring such a power on a single judge?

61. In my view, the single judge procedure is relevant to the making of an order for loss of time only to this extent. Where an application for leave has not gone through this procedure, it does not necessarily mean that no order for loss of time could or should be made by the Court of Appeal if the application is clearly without any merit. Where the application has been refused by a single judge, there is a much stronger case for the making of an order for loss of time if the applicant insists on renewing his application before the full Court of Appeal.” (Emphasis added)

9.After reviewing the application of the power when a convicted person pursues an application upon legal advice, Chan PJ, at [69], reiterated that “[i]n appropriate cases where it is plain that the application is totally unmeritorious, it is the duty of the court to consider directing loss of time even though the application is made pursuant to legal advice.”  

10.The importance and necessity of the power to order loss of time was further addressed in Practice Direction – SL4 (Practice Note (Crime: Sentence: Loss of Time)), which was handed down on 9 October 2013 by Stock VP (as he then was) after consultation with the Chief Judge of the High Court and all other members of the Court of Appeal.  The Practice Note reiterates the statements in Chau Ching Kay, emphasising that wholly unmeritorious applications will normally be met with an order for loss of time because they result in a significant waste of judicial and administrative resources and in serious delays caused to meritorious appeals.  The Practice Note concludes:

“11. In the case of applicants who are unrepresented and whose application first comes before a single judge, the single judge has himself the power to order loss of time. Where an application has been refused by a single judge and the application is nonetheless renewed and the court before which the renewed application is made also takes the view that the application is wholly without merit, an order for loss of time will ordinarily be made.”

11.The power of a Single Judge and the Court of Appeal to order loss of time was again emphasised in paragraph 6A(7) of Practice Direction – 4.2 (Criminal Appeals to the Court of Appeal) issued by Ma CJ, which took effect on 11 March 2019. 

12.Section 39 of the Criminal Appeal Rules provides that an appellant may “at any time before the hearing” abandon his appeal.  It is a requirement that this be done by filing a Form VII, which when received will deem the appeal dismissed.  In HKSAR v Tam Tak Keung Sammy [2017] 4 HKLRD 453, the Court of Appeal received a notice of abandonment the day before the leave hearing.  The Court ordered loss of time and said: 

“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. Rule 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.

…

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 s.83W of the Criminal Procedure Ordinance (Cap.221)”

13.A Single Judge in refusing leave to appeal against conviction or sentence has power under section 83W to direct that the time, or part of the time, during which the applicant has been in custody pending the determination of his application may not be reckoned as part of the term of any sentence to which he is subject.  The exercise of this power can be repeated if an unmeritorious renewal of the leave application is made to the Court of Appeal. 

14.In HKSAR v Yee Hing Chung & Ors, unrep., CACC 287/2005, 18 October 2005, a Single Judge made a loss of time order in relation to an application for leave to appeal and warned of a further loss of time order if the renewal of the application was found to be unmeritorious by the Court of Appeal.

15.The purpose of a loss of time order is to deter unmeritorious applications or appeals, which would otherwise take up time that could be better spent on other cases.  Serious injustice will result when cases without merit are pursued on appeal because of the substantial waste of the judiciary’s resources and the wholly unnecessary impediment they cause to the expeditious disposal of other cases.  See HKSAR v Shahid Imran Younas [2016[ 3 HKLRD 804, at [39]-[41]; and HKSAR v Yik Siu Hung [2019] 2 HKLRD 631, at [44]-[48].

16.At the hearing, the applicant confirmed he received the letter from the Court dated 2 February 2021, but claimed he did not understand it and that was why he did not file a Form VII.  I have difficulty accepting his explanation because it would appear that the applicant is reasonably familiar with the court processes as he has a prior conviction for drug trafficking in 2012.  Having confirmed with the applicant that he did not wish to proceed with his application, I dismissed his appeal against sentence.  

17.I have decided not to exercise my power to make a loss of time order against the applicant.  However, I take the opportunity to sound a clear warning to others who are disposed to leave the matter to the last minute and not bother to file a Form VII to bring the proceedings to an end, when that is their intention, that they run the risk of having a loss of time order made against them.  The leave hearing in the present case caused considerable inconvenience and a substantial waste of resources.  It meant that the relevant officers and counsel for the respondent had to attend court and be ready for a hearing.  In fact, counsel for the respondent filed a Written Submission on 29 July 2021.  It also has expended valuable court time and resources that could have been spent on more pressing and meritorious appeals.

18.What this case highlights is the need for an amendment to section 39 of the Criminal Appeal Rules to impose on an appellant a much earlier obligation to file a Form VII to abandon his appeal.

Ms Janice Cheuk, SPP, of the Department of Justice, for the respondent

The applicant appears in person