Fung Wai-yin v. The Queen

CACC000300/1980

Appeal to Court of Appeal - dismissal by single judge - application not renewed in time - application for waiver of non-compliance can be made to single judge under r. 37 of Criminal Appeal Rules.

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Coram: Huggins and Leonard, JJ.A. and Addison, J.

Date of Judgment: 11 July 1980

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JUDGMENT

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Huggins, J.A.:

1. A question has arisen as to the power of the court to permit an applicant for leave to appeal whose application has been dismissed by the single judge to come to this court in spite of his having failed to return Form XIV, duly filled up by him, to the Registrar within fourteen days. In the present case the single judge thought it desirable that the question should be decided by the full court in view of the provision in r. 23(2) of the Criminal Appeal Rules that, where the application for leave is not renewed within due time, the refusal by the judge "shall be final". In the light of that he suggested to the present Applicant that he should make a fresh application for leave to appeal direct to the full court and the matter is now before us.

2. Clearly it was envisaged that as a general rule failure to renew the application should be a bar to any further proceedings. On the other hand, it is easy to suppose a situation where to bar the Applicant from presenting his case to this court would be a gross denial of justice, as where he was dangerously ill during the entire period of fourteen days. We think the answer to the problem lies in r. 37, which appears to be the only provision in the Criminal Appeal Rules under which the court has power "to extend the time within which ... an application for leave to appeal may be given" (see r. 22(1)(b)) and which reads in part:

"Non-compliance on the part of an appellant with these rules or with any rule of practice for the time being in force under the Ordinance shall not prevent the further prosecution of his appeal if the Full Court or a judge under rule 22 considers that such non-compliance was not wilful, and that the same may be waived or remedied by amendment or otherwise. The Full Court or a judge under rule 22 may, in such manner as it or he thinks right, direct the appellant to remedy such non-compliance, and thereupon the appeal shall proceed. ......"

Under that rule the finality of the single judge's refusal of an application for leave can in a proper case be mitigated, and by virtue of r. 22(1)(b) that power of mitigation can be exercised by the single judge himself. It is exercisable after the period of fourteen days has expired. Where an application to a single judge under r. 37 to waive a non-compliance with r. 23(2) is refused, that application may be renewed to the full court under the provisions of r. 22(1)(3).

3. In the present case the Applicant had arranged with his family that they would engage a solicitor to represent him upon his application to this court and he mistakenly thought that his solicitor would do all that was necessary. His failure was therefore not "wilful" in the sense in which that word is used in r. 37, but we would emphasize that applicants should not assume that someone else will return Form XIV to the Registrar: they must fill it up themselves and return it within the fourteen days allowed.

11th July 1980.

Representation:

Appellant in person.

Egan for Crown/Respondent.