The Queen v. Tam Kwok

CACC000310/1983

BETWEEN:

Coram: Roberts, C.J., Yang & Barker, JJ.A.

Date: 6th April, 1984.

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JUDGMENT

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Roberts, C.J.:

1. FAN Chung-lap and TAM Kwok were convicted of possession of dangerous drugs for the purposes of unlawful trafficking. FAN (D.1) was sentenced to four years' imprisonment and TAM (D.2) to three years' imprisonment.

2. The conviction of D.1 was quashed by a division of this Court on 7th September, 1983.

3. It is clear from the judgment which was delivered on that occasion that, if the conviction of D.1 could not stand, neither could that of D.2.

4. D.2 has therefore sought leave to withdraw the notice of abandonment of his application for leave to appeal against conviction dated 6th April, 1983  There are, however, substantial difficulties in the way of an applicant who seeks leave to withdraw his notice of abandonment.

5. In R. v. Medway⁽¹⁾ the Court of Appeal in England considered in great detail the previous authorities on the subject of the withdrawal of a notice of abandonment. It concluded that the court had no inherent jurisdiction to permit a withdrawal and that it could properly permit a notice of abandonment to be withdrawn only in circumstances in which it could be said that the mind of the applicant did not go with his act of abandonment, so that it was not his "true act".

6. This court, R. v. CHAN Tak Kwon ⁽²⁾ stated that it considered itself bound by the principles set out in Medway⁽¹⁾.

7. D.2 submitted an affidavit in support of his application to withdraw. In this, he set out the reasons why he abandoned his appeal. These were because he could not raise sufficient money to engage a lawyer, that he did not apply for legal aid because he had no confidence in government lawyers, a misapprehension that I hope is about to be corrected, that the chance of his winning an appeal was very remote, without the benefit of legal representation, and that he had previous convictions which he thought would prejudice his appeal further.

8. We have had to deal with arguments that pull in opposite directions. This is clearly a case in which justice requires that D.2's appeal he heard as quickly as possible since, for the reasons which I have already given, that appeal will be successful and his conviction quashed.

9. On the other hand, we do not see how the circumstances in which he abandoned his appeal can properly be brought within the tests applied in R. v. Medway.⁽¹⁾ There is nothing in his affidavit which supports the contention that his act of abandonment was a nullity.

10. His reasons were that he could not raise sufficient money to engage a lawyer, that he believed that the absence of a lawyer made it impossible to win an appeal are insufficient grounds: These are not good reasons, but they are reasons and were the basis of a deliberate act on his part.

11. With regret, we find ourselves obliged to allow D.2's application to withdraw his notice of abandonment. We will, however, grant him immediate bail without conditions, until this matter is brought before us by the alternative method, of a reference by the Crown to the Governor under section 83P of the Criminal Procedure Ordinance, which we strongly suggest is a course which should be adopted.

12. When that reference comes before this court, we shall have no difficulty in immediately quashing D.2's conviction. It will not be necessary, on that subsequent occasion, for either D.2 or his legal representative to attend before this court.

(1) [1976] 62 Cr.App.R. 85

(2) Crim. App. No. 134/83.

Representation:

J. Matthews (0'Cock & Day) for Applicant

P. Dale, S.C.C., for Crown.