HKSAR v. Butt Aziz Akbar

HCMA 1017/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1017 OF 2004

(ON APPEAL FROM NKS 3483/2004)

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BETWEEN

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Before: Deputy High Court Judge Barnes in Court

Date of Hearing: 13.4.2005

Date of Judgment: 13.4.2005

Date of Handing down Reasons of Judgment: 14.4.2005

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J U D G M E N T

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Background

1.The Appellant was convicted of Careless Driving on 22.9.2004. He filed a Notice of Appeal against Conviction on 5.10.2004. Before the appeal was heard, the Appellant’s solicitors filed on his behalf a Notice of Abandonment of Appeal (“the Notice”) on 5.11.2004. Upon receipt of the Notice the appeal was dismissed.

2.By an affirmation dated 14.3.2005, the Appellant applied for the Notice to be treated as a nullity and to reinstate the appeal.

Grounds submitted by the Appellant

3.In his affirmation the Appellant stated that an application for the transcript was refused by the High Court. His legal representatives strongly advised him that without the transcript the chance of winning the appeal was slim, he was also advised of the costs implication should he lose the appeal. The Appellant found that he was left with no choice but to instruct his lawyer to file the Notice.

4.The Appellant claimed that his legal representatives failed to inform him that he could have applied for the transcript from the Magistracy and that they failed to inform him that he could apply to the Court of Final Appeal even if he has lost his appeal in the High Court. The Appellant claimed that his mind did not go with any act of abandonment.

The Law

5.The Court of Appeal in the case of HKSAR v LAI Siu Cheung CACC 487/2002 set out the applicable principles. It is well established that the restoration of an appeal after abandonment is only permissible where it can be demonstrated that the abandonment was a nullity. There is no inherent jurisdiction to hear an appeal which has been dismissed.

6.As to what amounts to the “nullity test”, the Court of Appeal referred to the judgment in  R. v Medway  [1976] 1 62 Cr. App R 85 as follows (at page 13 of the judgment):

“ In our judgment the kernel of what has been described as the ‘nullity test’ is that the Court is satisfied that the abandonment was not the result of a deliberate and informed decision, in other words that the mind of the applicant did not go with his act of abandonment. In the nature of things it is impossible to foresee when and how such a state of affairs may come about, therefore it would be quite wrong to make a list, under the headings as mistake, fraud, wrong advice, misapprehension and such like, which purports to be exhaustive of the types of case where this jurisdiction can be exercised. Such headings can only be regarded as guidelines, the presence of which may justify its exercise”.

Judgment

7.Having considered the relevant legal principles and the circumstances of the Appellant, I do not accept the Appellant’s assertion that “his mind did not go with his act of abandonment”. It is clear to me that he knew exactly what he was doing. He received advice relating to the prospects of success on appeal and the costs implication. He made a deliberate and informed decision when he decided to abandon the appeal. There is nothing here to show that the Notice was a nullity. The Appellant’s application to treat the Notice as nullity and to reinstate the appeal is therefore refused.

Ms. WAN Shuk Fong, Polly, SGC, of the Department of Justice, for the Respondent

Appellant in person