Mong Siu Bun and Another v. The Queen

Case No.CACC 540/1968

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000540/1968

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 540 OF 1968

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BETWEEN
	(1) MONG SIU BUN	1st Appellant
	(2) YU SHUM WING	2nd Appellant
	AND
	THE QUEEN	Respondent

Coram: Briggs, J.

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JUDGMENT

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1. In this case the two appellants were convicted of common assault and were sentenced to a fine of one hundred dollars each. In addition they were bound over to keep the peace for six months in the sum of one hundred dollars. They were convicted on August 29th, 1968.

2. The appellants appealed against conviction almost immediately afterwards. They were at that time unrepresented.

3. On October 16th, 1968 solicitors sent the following letter to the Registrar of the Supreme Court:

"	The Registrar, Supreme Court, Hong Kong.

	Dear Sir,

	Re: Criminal Appeal No. 540/68
	We beg to inform that as advised Counsel will, at the hearing on the 8th November 1968, make an application for leave to appeal against sentence apart from appealing against conviction.
	Since the hearing has been originally fixed for the 17th October 1968 we regret that we have to apply for this date to be adjourned to the 8th November as Counsel is unavailable on the original date.
	Yours faithfully, "

4. A copy was sent to the office of the Attorney General.

5. It would appear that this letter was shown to the judge before whom the appeal had been sat down and that he agreed to hear any application on the date of the hearing of the appeal. In those circumstances I treated the letter as if it were an application by the appellants for leave to appeal against sentence out of time.

6. I would like to make it clear however that the circumstances of this case are exceptional. I think that this is the first occasion on which this Section has come before the Court for interpretation. The decision in this case is not to be taken as a precedent that the section is satisfied by sending a letter such as is quoted above to the Registrar: indeed in all cases the section must be strictly complied with.

7. Section 114A of the Magistrates Ordinance permits an appellant to make an application to the court for leave to appeal out of time. The section reads as follows :-

"	114A. (1) Where it appears to a magistrate or to a judge, on application made in accordance with subsection (2), that any person wishing to appeal against any conviction, order or determination by any magistrate has failed to give the notice of appeal required by section 114 within the period of fourteen days prescribed by paragraph (a) thereof, the magistrate or the judge, as the case may be, may, on good cause being shown by the applicant, order that such notice may be given within such further time as shall be specified in such order.
	(2) An application under subsection (1) shall be made in writing and (b) where the application is being made to a judge, shall be sent by the applicant to the Registrar."

8. The words of this section are mandatory and unless the procedure laid down is strictly followed, the court has no power to grant leave. It is not enough to send a letter to the Registrar announcing an intention to make an application to the court at a future date. A formal application should be written out signed by the appellant or on his behalf. And it should contain an indication of the grounds on which it is sought to rely. Because an order to extend the time will only be made on good cause being shown by the applicant. Such application should be sent to the Registrar in accordance with the provisions of the section.

9. In the present case I dismissed the appeals against conviction. However I was of the opinion that having regard to the triviality of the offence and the characters of the two appellants that an order should be made under section 36 of the Magistrates Ordinance in substitution for the sentence passed by the lower court. I therefore ordered that no conviction should be recorded against the two accused, that each appellant should be discharged upon entering into a bond of $100 to keep the peace and to come up for judgment when called upon during the next six months.

	(G.G. Briggs)
	Puisne Judge

Representation:

Bernacchi Q.C. & Michael Asome (Seu & Liang) for both Appellants.

F. Addison C.C. for Respondent.