The Queen v. Wong Wai Leung

CACC000369/1989

BETWEEN

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Coram: Silke, V.-P., Power & Macdougall, JJ.A.

Date of Hearing: 6 March 1990

Date of Judgment: 6 March 1990

Date of handing down Reasons: 22 March 1990

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JUDGMENT OF THE COURT

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Silke, V. -P.:

1. Wong Wai Leung, the applicant, appeared before His Honour Judge Baily on a charge of possession of dangerous drugs for the purpose of unlawful trafficking. He was convicted after trial and sentenced to a period of 4 1/2 years' imprisonment. The application with which we are concerned is one to withdraw a Notice of Abandonment of an application for leave to appeal against the conviction. This we refused at the hearing. We said we would give our reasons later which we now do.

2. Basic evidence was given by a police constable who said that he, in uniform and with others, was on patrol on 14th November 1988 in Man Cheong Street, Kowloon. They saw the applicant, caught up with him and called upon him to stop. He ran away. He was chased and was seen to throw a bag into the typhoon shelter. One of the accompanying police officers stopped while the others continued to chase the applicant and eventually apprehended him. He was brought back to where the watching police constable was and, with the assistance of a boat lady and her boat, the bag was recovered from the typhoon shelter. That bag contained 466.47 grammes of a mixture containing 26.63 grammes of salts of esters of morphine.

3. It was the case for the applicant that he was in the area and somebody did call out to him. His running was because he had previously been beaten up in the area and was afraid that it might happen to him again. He denied he knew police were in the area or that he threw the bag of drugs into the typhoon shelter.

4. The trial judge believed the evidence of the prosecution and did not accept that of the applicant. In respect of the boat lady he placed little reliance upon her evidence, which conflicted with that of the police officers, as to the distance out from the sea wall the bag was when it was picked up, and in this he was clearly right.

5. On 12th July 1989, within time, the applicant applied for leave to appeal against his conviction. On 17th October 1989 the applicant filed Notice of Abandonment of that application. The instant proceedings are entitled "An application for withdrawal of notice of abandonment" and we have further, should that application be successful, been provided with the grounds which Mr. Hampton, who appears for the applicant in this Court, would seek to argue and upon which he has briefly addressed us.

6. We have had opened to us two affirmations, one from the applicant himself and one from a member of the firm of the solicitors whom he has now instructed. In the District Court the applicant was represented by another solicitors firm who had instructed counsel on his behalf. Subsequent to conviction those solicitors kept in contact with him. He also made an application for the grant of legal aid. That latter application was withdrawn on 6th September because his trial solicitors came on record as representing him. On 17th October 1989 a clerk from that firm came to see him and told the applicant that counsel, and more than one counsel at that, had given it as their opinion that his prospects of a successful appeal were so slim he should abandon it. His affirmation then goes on, and this is the gravamen of Mr. Hampton's application:

"Furthermore, this clerk also told me that my sentence would likely be increased if I proceeded with my appeal against conviction because, he said, my sentence was relatively short in relation to the amount of dangerous drugs which I was convicted of possessing for the unlawful purposes of trafficking. In addition, this clerk also told me that a solicitor in his firm had perused the documents and was of the opinion that I would have a better chance of being put into a training centre if I only appealed against sentence." (Emphasis supplied)

It was after this that the Notice of Abandonment was filed on his behalf.

7. We would interpolate here that, in the course of preparing these reasons, it became apparent that the Notice of Abandonment, while signed by the applicant, has the name of a different solicitors firm upon it. No reference to this appears in the applicant's affirmation nor was the matter drawn to our attention in the course of the hearing. We must therefore assume that nothing turns upon it.

8. In Chan Tak Kwong v. The Queen [1983] HKLR 391, another Division of this Court followed the decision in Medway [1976] 62 Cr.App.R. 85. In The Queen v. Tam Kwok Criminal Appeal No. 310 of 1983 (unreported) Medway was again followed. It is sufficient for our purpose to make reference to only the headnote in Medway. That Court had considered, and in detail, a number of previous decisions relating to attempts to withdraw Notices of Abandonment of appeals or of applications for leave to appeal. It held that the Court had jurisdiction to give an applicant leave to withdraw where the notice of abandonment could be treated as a nullity. Medway described the kernel of the nullity test as being where the abandonment did not result from a deliberate and informed decision, in other words, where the mind of the appellant or applicant did not go with his act.

9. It further held that there was no inherent jurisdiction enabling the Court to give leave in other special circumstances.

10. English Courts can, where a Notice of Abandonment cannot be treated as a nullity and, if satisfied that injustice would ensue if the matter is not dealt with, refer it to the Secretary of State. We conceive ourselves to have an analogous jurisdiction in similar circumstances to advise and assist the applicant to petition His Excellency the Governor for a Reference to be made to this Court. Vide: Tam Kwok. It was for this reason that we also heard Mr. Hampton on the grounds which he would have sought to argue had leave been granted. The second affirmation, the solicitor's, goes to the merits of the injustice point.

11. Despite Mr. Hampton's arguments to the contrary we are not here persuaded that the paragraph of the affirmation of the applicant which we have cited does provide grounds whereby this Court can treat the abandonment as a nullity. The opinion that the prospect of a successful appeal was slim was a perfectly valid one. It was good professional advice. The passage which refers to the possibility that the applicant's sentence could be increased if he went on with his appeal against conviction, on strict interpretation, could be thought erroneous: there was no appeal against sentence and it would not have been open to the Court to increase it even though, in the light of Chan Chi Ming [1979] HKLR 491, the sentence of 4 1/2 years was demonstrably on the low side. This was the view taken by the solicitor's clerk and was, with respect to Mr. Hampton, a view he was entitled to express. But unmeritorious appeals can be visited with a loss of time. We have no affirmation or affidavit from the clerk concerned, nor from anyone else, to inform us of precisely what was said on 17th October and the wording relied on is, in the circumstances, ambiguous.

12. In our judgment in this instant case we do not think the undoubted jurisdiction which we have is one which should be exercised in favour of the applicant. We do not think him to have been misled. The very real possibility existed that, had his application proceeded, he would have placed himself in peril of a loss of time direction. We would add that the grounds of appeal do not in our judgment raise any valid issue as to injustice and, in consequence, do not afford a reason why this Court should advise a Reference to His Excellency the Governor.

Representation:

G. Hampton, Esq. (Hampton, Winter & Glynn) for Applicant

D.G. Saw, Esq. for Crown/Respondent