HKSAR v. Lai Siu Cheung

CACC487/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 487 OF 2002

(ON APPEAL FROM DCCC NO. 787 OF 2002)

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BETWEEN

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Before : Hon Stuart-Moore VP, Stock JA and Jackson J in Court

Date of Hearing : 26 August 2003

Date of Judgment : 23 December 2003

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J U D G M E N T

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Stuart-Moore VP, Stock JA and Jackson J (giving the judgment of the Court) :

Introduction

1.Pursuant to a Notice of Motion dated 15 July 2003 the applicant sought leave to treat his abandonment of an application for leave to appeal against sentence as a nullity.

2.On 17 September 2002 the applicant was convicted upon his own pleas in the District Court before His Honour Judge Wesley Wong of five offences contrary to the Crimes Ordinance :

“1^st Charge
Statement of Offence

Passing counterfeit notes or coins, contrary to section 99(1)(a) of the Crimes Ordinance, Cap.200.

Particulars of Offence

LAI Siu-cheung, on the 2^nd day of July 2002, at G/Floor, 1A Pei Ho Street, Kowloon, in Hong Kong, passed or tendered as genuine a thing which he knew or believed to be a counterfeit of a currency note, namely one thing resembling a $50 Hong Kong currency note.

2^nd Charge
Statement of Offence

Passing counterfeit notes or coins, contrary to section 99(1)(a) of the Crimes Ordinance, Cap.200.

Particulars of Offence

LAI Siu-cheung, on the 2^nd day of July 2002, at G/Floor, 1B Pei Ho Street, Kowloon, in Hong Kong, passed or tendered as genuine a thing which he knew or believed to be a counterfeit of a currency note, namely one thing resembling a $50 Hong Kong currency note.

3^rd Charge
Statement of Offence

Custody of counterfeit notes or coins with intent, contrary to section 100(1) of the Crimes Ordinance, Cap.200.

Particulars of Offence

LAI Siu-cheung, on the 2^nd day of July 2002, at Outside G/Floor, 186 Hai Tan Street, Kowloon, in Hong Kong, had in his custody or his control seventeen things which were and which he knew or believed to be counterfeit of currency notes, namely seventeen things resembling $50 Hong Kong currency notes, intending either to pass or tender them as genuine or to deliver them to another with the intention that he or another shall pass or tender them as genuine.

4^th Charge
Statement of Offence

Custody of counterfeit notes or coins with intent, contrary to section 100(1) of the Crimes Ordinance, Cap.200.

Particulars of Offence

LAI Siu-cheung, on the 2^nd day of July 2002, at Inside 7/Floor, 266 Tai Nan Street, Kowloon, in Hong Kong, had in his custody or his control eighty-nine things which were and which he knew or believed to be counterfeit of currency notes, namely eighty-eight things resembling $50 Hong Kong currency notes and one thing resembling $100 Chinese New Yuan currency note, intending either to pass or tender them as genuine or to deliver them to another with the intention that he or another shall pass or tender them as genuine.

and

5^th Charge
Statement of Offence

Custody of counterfeit notes or coins with intent, contrary to section 100(1) of the Crimes Ordinance, Cap.200.

Particulars of Offence

LAI Siu-cheung, on the 2^nd day of July 2002, at Inside 7/Floor, 266 Tai Nan Street, Kowloon, in Hong Kong, had in his custody or his control ninety-four things which were and which he knew or believed to be counterfeit of currency coins, namely ninety-four things resembling $10 Hong Kong currency coins, intending either to pass or tender them as genuine or to deliver them to another with the intention that he or another shall pass or tender them as genuine.”

The admitted facts

3.Put shortly the facts of the offences as admitted by the applicant were these :

On 2 July 2002 the applicant was being kept under surveillance by police officers.  He entered a shop in Shamshuipo and purchased a lighter for which he tendered a counterfeit HK$50 bank note [Charge 1].

The applicant then entered an adjacent shop where he purchased a pack of tissues for which he again tendered a counterfeit HK$50 bank note [Charge 2].

A few minutes later the applicant was stopped and searched by a police officer and he was found to have 13 counterfeit HK$50 bank notes in his waist bag and four counterfeit HK$50 bank notes in his wallet [Charge 3].  He was duly arrested and taken to the police station before being then taken to his home for a search of those premises.

Concealed in those premises the police found 88 counterfeit HK$50 bank notes and one counterfeit $100 Chinese New Yuan bank note [Charge 4].  They also found concealed there 94 counterfeit HK$10 coins [Charge 5].

When the applicant was subsequently interviewed by the police he gave a very detailed statement explaining how it was that he was in possession of the counterfeit bank notes and coins.  In essence he said that he had been given them on the Mainland by two different people and that his job was to dispose of them at their face value and give 40% of the proceeds of the banknotes and 45% of the proceeds of the coins to those who had given them to him.

The mitigation

4.The mitigation advanced by counsel on the applicant’s behalf in the court below was short and to the point.  In essence it was to the effect that the applicant had found himself in financial difficulties and he had committed the offences to alleviate those difficulties; that he had pleaded guilty; and that he had not offended in a similar fashion previously.  Counsel concluded by addressing the judge on the question of enhancement of sentence by reference to figures provided by the prosecution relating to similar offences.

5.The judge imposed prison sentences of two years and eight months in respect of each of the five offences to which the applicant had pleaded guilty.  He ordered that those sentences imposed in respect of Charges 1, 2 and 3 were to run concurrently but that the sentences imposed in respect of Charges 4 and 5 (albeit concurrent between themselves) were to commence after he had served 10 months of the sentences imposed in respect of Charges 1, 2 and 3.

6.The effect of all of that was that the applicant was to serve a total sentence of three years and six months’ imprisonment.

7.In sentencing the applicant the judge said, inter alia, the following :

“... the only mitigation is your plea of guilty ... for this I will give you the usual discount.

In assessing the starting point I have to consider the amount of counterfeit notes involved and their resemblance to the genuine notes.  As I have said earlier, they resemble the genuine notes and coins, so I adopt a starting point of 3 years in respect of each charge.

As to enhancement of sentence, I noted that there is a substantial increase in $50 counterfeit notes since 1999 from 790 pieces to 2001: 2,155 and then 2002 July: 2,666.  And as to $10 coin counterfeits; 1999: 168,612 to 2001: 460,835, and then up to 2002 July: 408,232.

So I enhance the sentence by one-third and take a starting point of 4 years in respect of each charge.”

The grounds of appeal

8.If we are to grant leave to set aside the applicant’s abandonment of his appeal as a nullity — and that is the matter to which we will next turn our attention — Mr Loughran for the applicant originally sought to rely upon the following grounds of appeal against sentence :

“That the total sentence imposed of 3½ years imprisonment (2 years 8 months on Charges 1-5, with sentences on charges 4 and 5 to begin 10 months later than that imposed on Charges 1-3) is wrong in principle and/or manifestly excessive, in that:

(a)   the initial starting points of 3 years imprisonment were in the circumstances too high

(b)   the learned Trial Judge erred in ordering sentences on charges 4-5 to being 10 months later than the sentences imposed on charges 1-3.

(c)   the learned Trial Judge erred in ordering enhancement ... of 1/3, or at all (and failed to follow the sentencing approach in HKSAR v Tam Wai Pio [1998] 2 HKLRD 949).

and

(d)   That the learned Trial Judge erred in failing to consider the totality principle and in failing to adjust downward accordingly the sentences imposed.”

We say ‘originally’ because Mr Loughran did not pursue before us ground (c) to the relevance of which we will later refer.

The application to set aside the abandonment

9.We have had the benefit of reading two affirmations relating to this application to set aside the abandonment, the first (dated 7 July 2003) by Mr Ng Wing Ping a Senior Legal Aid Counsel, and the second (dated 15 July) by the applicant himself.

10.It is apparent from the content of those affirmations and from the submissions of counsel that the applicant filed his first Notice of Application for leave to appeal against sentence on or about 23 September 2002 and he proceeded to apply for legal aid.  The Legal Aid Department refused his application on 20 November 2002 on the ground that “the sentence [was] neither wrong in law nor manifestly excessive”.  In consequence the applicant filed a notice to abandon his appeal and it was duly marked ‘abandoned’ on 3 December 2002.  Accordingly, his application for leave to appeal against sentence stood dismissed by reason of Rule 39 of the Criminal Appeal Rules, Cap. 221 which provides as follows:

“An appellant may, at any time before the hearing thereof, abandon his appeal by giving notice of abandonment thereof to the Registrar in Form VII, and upon such notice being received by the Registrar the appeal shall be deemed to have been dismissed by the Court of Appeal.”

11.Thereafter Mr Ng of the Legal Aid Department reconsidered the application and he formed the view that a ground of appeal against sentence might be founded on the issue of enhancement of sentence.  The applicant was so advised and he was invited to re-apply for legal aid.

12.On or about 5 December 2002 the applicant (again by notice) sought leave to appeal against his sentence ‘out of time’ and he then renewed his application for legal aid which was granted on 3 April 2003.  As Mr Loughran points out that application for leave is :

“… procedurally incorrect in that it purports to be a step in an appeal when by virtue of Rule 39 of the Criminal Appeal Rules Cap.221 the appeal has in fact been formally dismissed.”

Mr Loughran says that what in fact the applicant seeks is leave to have his abandonment of the first Notice of Appeal withdrawn, set aside, or treated as a nullity, so that such notice is effectively reinstated or restored and the second Notice of Appeal becomes — as Mr Loughran puts it — redundant.  What is in fact sought is specified by the Notice of Motion, namely, leave to treat the abandonment as a nullity.  That is the only correct basis upon which the matter may be approached.

Submissions

13.In the course of his helpful written and oral submissions Mr Loughran argues that, whilst this Court appears to have the power to permit the reinstatement of an appeal (notwithstanding the wording of Rule 39) the basis of that power is, perhaps, somewhat vague; and its exercise would appear on the authorities not to be limited to an abandonment which is deemed to be a nullity.  He further suggests that what constitutes such a nullity is not (again on the authorities) entirely clear and he cites certain authorities where leave has been given by appellate courts where nullity, properly so described, does not appear to have been established.

14.In particular he has referred us to HKSAR v. Yan Suk Yin, Criminal Appeal No. 151 of 2001, 13 March 2003, unreported, in which he appeared for the applicant before this Court in March of this year, and to R. v. Tam Kwok [1984] HKC 184, in both of which cases he suggests that, irrespective of the question of nullity, the court preferred to deal with the application having regard, principally, to whether or not the appeal had underlying merit.

15.If we have understood his argument correctly Mr Loughran invites us to treat this application in the same way, based upon the underlying merits, rather than seeking to decide it on the question whether or not the abandonment was, in truth, a nullity.

16.However he says that even if we are not prepared to do that and we decide to adopt the test applied in HKSAR v. Wong Kwai Wing, Criminal Appeal No. 514 of 1991, 11 February 2003, unreported, of enquiring whether or not the applicant had a “properly advised mind” or “informed consent” relating to his abandonment, we may be able to ascertain that such was a nullity, given the advice tendered to the applicant which led to that abandonment and which advice was subsequently changed.

17.Mr Lee, for the respondent, argues that the applicant is not pursuing the ‘enhancement ground’ (which was the ground which caused legal aid counsel to alter his advice) so that the application must fail, because it is no longer sustainable applying the Medway nullity test, to which we refer below.

18.The fact that the basis of the change of heart, namely, the enhancement point, has now been itself abandoned, does not resolve the nullity issue which is before us, since the grant of legal aid followed counsel’s advice which was not restricted to the enhancement point, and the arguments before us are that there are other valid grounds of appeal for which reason this Court should, it is said in the exercise of some broad jurisdiction, treat the abandonment as a nullity.

A conflict of approach

19.The judgment of this Court in Yan Suk Yin seems, understandably, to have encouraged a number of counsel to the view that this Court is prepared, where the underlying merits of a proposed appeal seem to justify re-opening the case, to assume an inherent jurisdiction to permit re-opening regardless of the circumstances of abandonment.  The cases of Yan Suk Yin and Tam Kwok apart, Mr Loughran also referred to HKSAR v . Wong Wai Yip Criminal Appeal No. 287 of 1995, 12 May 1999, unreported, a case in which the court treated the abandonment as a nullity on the basis of possibly incorrect legal advice.

20.Yet there is much in the case law of Hong Kong which runs against the course ultimately taken in Yan Suk Yin and Wong Wai Yip, and one such contrary decision is R v. Tam Kwok, upon which Mr Loughran relied.  In Tam Kwok, the court, faced with circumstances which dictated that the applicant’s conviction could not stand, nonetheless would not treat the abandonment of the appeal as a nullity but instead referred the case to the Governor under section 83P of the Criminal Procedure Ordinance.  So too the course taken in Yan Suk Yin does not sit comfortably either with the reasoned decision in HKSAR v. Wat Yiu Kwong, Cardiff CACC 237 of 2001, 20 September 2002, unreported, in which the court held that a mistake as to the prospects of success in an appeal did not constitute an abandonment a nullity; or with R v. Wong Wai Leung [1990] 1 HKC 144.

21.Yan Suk Yin was a case in which obviously wrong legal advice had been given that there were no grounds of appeal where the trial judge had delivered starkly erroneous directions, and the court there, without deciding the point of law whether erroneous legal advice could found a nullity, decided to treat the abandonment as a nullity, motivated as it was by the history of the case and the fact that a referral to the Chief Executive under section 83P meant further delay in the delivery of a remedy.  Upon reflection, in the light of the analysis which follows, the course which the court ought there to have taken was to refer to the matter under section 83P, and to grant the applicant bail pending the determination of that referral.  As for Wong Wai Yip, we note that none of the authorities to which we refer below, Medway and Tam Kwok apart, appear to have been cited to, or considered by, that court.

22.As Mr Loughran correctly says, the court in Yan Suk Yin, before whom, as we have noted, Mr Loughran also appeared, had occasion to study many authorities touching upon the issue of a change in legal advice, or in the perception of the merits of an appeal, and its effect upon the character of an abandonment; but that, ultimately, that court did not address the core issue raised by those cases.  We need now to do so, and to lay to rest the loose approach adopted in Yan Suk Yin and Wong Wai Yip.

Analysis

23.It is well established in this jurisdiction that the restoration of an appeal after an abandonment is permissible only where it can be demonstrated that the abandonment of the original application was a nullity.  The reasoning to be followed is that in R v Medway [1976] 1 62 Cr App R 85 in which the English Court of Appeal reviewed the cases at length, and the correct principles which emerged.  This court is not empowered once an appeal has been abandoned, and therefore dismissed, to deal with an appeal.  To do so would require statutory authorization and for that none exists, save the power conferred by section 83P of the Criminal Procedure Ordinance.  There is no inherent jurisdiction to hear an appeal which has been dismissed.  Once an appeal has been dismissed, the Court of Appeal is functus officio and it is established that there is no co-existing inherent jurisdiction to enable the court to permit an appeal to be reopened because of special circumstances falling short of an abandonment having been a nullity:

“The answer to the first question which we have to decide depends upon whether alongside the jurisdiction which undoubtedly, as all authorities show, exists to give leave to withdraw an abandonment where it is shown that circumstances are present which enable the Court to say that that abandonment should be treated as a nullity, there co-exists an inherent jurisdiction, in other special circumstances, enabling the Court to give such leave ….

As we have said at the outset, the jurisdiction of this Court and of its predecessor is based upon statute and we have been referred to and have found no authority to support the existence of a parallel inherent jurisdiction.” Medway, above, pp 98 and 99.

24.It follows that the only circumstances in which an abandoned appeal may be restored for hearing is if, as a matter of law, that abandonment may properly be treated as if it had never occurred, and the only circumstance in which that course is permissible is if that abandonment was in law a nullity.

25.When may it be so treated?  The English Court said, in Medway, at page 98:

“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 such 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.”

26.A study of that decision, as well as the analysis of it in R v Bridges [1998] 104 A Crim L R 322, illustrates the type of situations which will render an abandonment a nullity.  We do not think it is wise to attempt some exhaustive definition or summary of those situations, but it will be seen that, typically, they tend to concern the applicant's understanding of the effect or consequences of the document he is signing or, perhaps, misapprehending the effect of an appeal were he to persist.  Examples are helpfully provided in Bridges, especially at pages 327 and 328.  But:

“These decisions are to be distinguished from those cases where the applicant signs a notice of abandonment by reason of incorrect legal advice concerning the likelihood of the appeal succeeding: see Healey.  An example of the latter category is Medway itself, where the applicant filed a notice of abandonment on the basis of legal advice which, according to the applicant's submission, was wrong due to his fundamental misapprehension as to the law.  Lawson J said in this regard (at 799; 99):

‘Even if we accepted the factual basis for this contention, which we do not, we do not think that a deliberate decision to abandon taken as a result of advice which is founded on a mistaken view of the law is in itself capable of vitiating the effectiveness of the notice to abandon so as to enable the court to treat it as a nullity.’

In Green [1989] 1 Qd R 408; (1988) 32 A Crim R 417 the applicant was informed by a welfare officer that his appeal was unlikely to succeed and, without the benefit of legal advice, he decided to abandon it.  In the circumstances his application to withdraw the notice was refused.

In Victoria, the Court of Criminal Appeal has adopted the same approach by holding that incorrect advice as to the prospects of success on appeal does not give rise to a nullity: see Gardiner [1970] VR278 …

When it comes to wrong advice, the position is more complex.  If the erroneous advice relied upon relates to the nature or effect of the act of abandonment, the act will be regarded as a nullity.  But if the advice relates only to the prospects of success on appeal, then the notice will not be declared a nullity.  In Peters, for example, Lawton LJ concluded that the applicant in that case ‘[did] not [make] a mistake as to his act.  He [made] a mistake as to his prospect of success in his application which is another matter altogether’. The principles expressed in Peters were not followed in Wilkinson (unreported, Court of Appeal, UK, 20 May 1975) referred to in Medway at 795-796; 96-97, but the Court of Appeal in Medway considered (at 798; 98) that Wilkinson was wrongly decided.

The consequences of a mistake as to prospects of success on appeal do not alter depending on whether the mistake results from a misapprehension as to the law, or the facts proved at the trial, or ignorance of fresh evidence, or a combination of any of these. There is no difference in principle between mistakes so caused.” (pages 328 and 329)

27.The rationale for the distinction between, on the one hand, mistakes or erroneous advice as to the nature and effect of the notice of abandonment and, on the other, the prospects of success, as a ground for suggesting that the abandonment is a nullity, is succinctly explained in Bridges,at pages 329-330:

“The rationale for a mistake as to prospects of success on appeal (irrespective of the cause of the mistake) not giving rise to a null notice of abandonment is that a notice of abandonment signed or served for that reason remains the true act of the applicant.  Wrong advice of this kind does not result in a decision that is not properly informed for the purposes of the nullity test.”

28.We agree with this approach.  It is the only logical approach, in that it recognizes that once an appeal has been dismissed, the court is functus unless the dismissal was itself based on an act which was a nullity; that when one asks whether an act is a nullity, it is to the act of abandonment itself that one looks; and the approach recognizes, also, that the right of appeal is conferred by statute and that there is no inherent jurisdiction to entertain the reopening of an appeal once dismissed.  The person who, properly informed, knows what the document is that he or she is signing and who, properly informed, knows what the effect is of the document he or she is signing and, with that knowledge, deliberately signs the document, will be hard pressed to show that that act is a nullity.  Wrong advice given as to the merits of an appeal is not advice that goes to the nature, or to the effect of the signing of, the document.  To say that wrong advice as to the merits of the underlying appeal vitiates the act of abandonment is to address the wrong issue, and incidentally, would be to invite frequent arguments as to the accuracy or wisdom of advice given in many a situation where clients or counsel have second thoughts about earlier advice as to the merits which have been followed by abandonment of appeals.  Such an instance was Wat Yiu Kwong, Cardiff to which we have made earlier reference.  The refusal to entertain renewed appeals in such circumstances does not leave the applicant, who may have been the subject of a miscarriage of justice, without remedy.  We have already mentioned section 83P of the Criminal Procedure Ordinance.  It provides:

“(1) Where a person has been convicted on indictment or been tried on indictment and found not guilty by reason of insanity, or been found by a jury to be under disability, the Chief Executive may, if he thinks fit, at any time either-

(a) refer the whole case to the Court of Appeal and the case shall then be treated for all purposes as an appeal to the Court of Appeal by that person; or

(b) if he desires the assistance of the Court of Appeal on any point arising in the case, refer that point to the Court of Appeal for its opinion thereon, and the Court of Appeal shall consider the point so referred and furnish the Chief Executive with its opinion thereon accordingly.

(2) A reference by the Chief Executive under this section may be made by him either on an application by the person referred to in subsection (1), or without any such application.

(3) For the avoidance of doubt, it is hereby declared that this section also applies in a case where an appeal has been heard and determined by the Court of Final Appeal.”

29.Counsel in this case and in others have sought to persuade the court to an approach which has been labelled as "flexible", and have remarked, with some justification, that this court has in certain cases exercised a concealed discretion of uncertain scope.  A signal advantage of the Medway approach, apart from its accuracy as a matter of law, is the advantage at which that court aimed when it embarked upon its lengthy and very detailed analysis of the cases and the principles, namely, that:

“... the basis for the exercise of this jurisdiction [to hear appeal after an abandonment] must be determined and, in the interests of clarity and certainty, its limits as far as possible defined.”(p 89)

30.An example of the flexible approach has been said to be R v Paolo Sorelli [1999] EWCA Crim 914, (31 March 1999, unreported) a case in which the applicant had been made the subject of a confiscation order which, pursuant to civil proceedings, he wished to have set aside so that money which he had paid under the confiscation order could be transferred to a party in the allied civil proceeding, a submission which had the sympathy of the court.  The problem was that Mr Sorelli had abandoned his application for leave to appeal against sentence, which was held to constitute an abandonment as well of any complaint against the confiscation order.  The applicant deposed in an affidavit that when he had abandoned his application for leave to appeal against sentence, he had not in mind any appeal against the confiscation order.  The Court of Appeal, Criminal Division, in England, referred to the decision in Medway, and said (page 10):

“In that case this court carried out an exhaustive review of previous cases in which the issue of permitting the withdrawal of an abandonment had arisen.  That review demonstrated that the main stream of authority was to the effect that there was no inherent jurisdiction enabling this court to give leave for a notice of abandonment to be withdrawn because there were special circumstances.  This court being a creature of statute could only countenance an abandonment of an appeal being withdrawn where the notice of abandonment had been a nullity.  This court reached that conclusion despite the decision of this court in Wilkinson presided over by Scarman LJ, as he then was, in which this court had delivered a powerful judgment in favour of this court having an inherent jurisdiction in cases where the circumstances were special or exceptional.  It may be that one factor in this court reaching the conclusion that it did in the case of Medway was that at that time the Secretary of State had power under s.l7 of the Criminal Appeal Act 1968 to refer matters to the court, and this court had a practice in appropriate cases of inviting the Secretary of State to make such a reference.  Section 3 of the Criminal Appeal Act 1995 provided that s.17 of the 1968 Act should cease to have effect.  Consequently that particular route to avoid injustice is no longer open.”

31.The court then referred to a passage in Medway in which that court had said that the “... cases in fact illustrate that the expression 'nullity' has been used in a very wide sense indeed,” and went on (page 11):

“The test is therefore that this court has to be satisfied that the abandonment in this case was not the result of a deliberate and informed decision, in other words that Mr Sorelli’s mind did not go with his act of abandonment.  In our judgment the particular facts of this case come within that test.  Although Mr Sorelli’s act of abandonment was deliberate, he signed the notice with only the sentences of imprisonment in mind.  The court had been told that no civil proceedings were on foot and, from Mr Sorelli’s affidavit it appears that he did not contemplate that he might be the subject of civil claims in respect of the sums that formed the basis of the confiscation order.  He had been told that BP had not stated proceedings and it did not occur to him that two and a half years after the confiscation order was made that they might start proceedings.  In those circumstances the act of abandonment by Mr Sorelli contains elements of mistake and misapprehension.  As this court observed in Medway the expression ‘nullity’ had been used in a very wide sense indeed and, we would observe such a flexible approach is perhaps made even more necessary today now that the s.17 power has disappeared.  In any event we conclude that this was one of those cases in which a state of affairs has come about where the court’s jurisdiction can and should be exercised.”

32.We make these comments:

(1) nothing in that judgment derogates from the sound logic of Medway;

(2) the court was not in that case dealing with a situation in which there had been erroneous advice as to the merits of the appeal

(3) the case cannot be read as embracing the suggested parallel inherent jurisdiction which Medway rejected; and

(4) the court there placed some emphasis on the lack of a provision akin to our section 83P, but for which the court would have been left with an apparent injustice for which there was no remedy.

33.So too it has been suggested that a relatively recent decision in Western Australia hints, albeit obiter, that wrong legal advice may give grounds for treating an abandonment as a nullity.  That case is Stock v R [2000] WASCA 196 (unreported), a decision of the Western Australia Court of Criminal Appeal.  However, that case is to be read with care.  The Court of Criminal Appeal there followed Bridges, and dismissed the application based on a suggestion that the applicant had a false picture of the effect of his abandonment - he thought that the appeal was suspended only, pending the report of an ombudsman.  When Wheeler J said, as he did at the very end of his judgment, that such a belief based on legal advice might have the effect of rendering the abandonment a nullity, one has to recognize the advice which he was addressing.  He was addressing advice as to the effect of a notice of abandonment and, of course, for reasons earlier explained, that may impact upon the validity of the abandonment because it goes to the act of abandonment, and not to the merits of the underlying appeal.

34.In R v Wong Wai-leung [1990] 1 HKC 144, the application was dismissed, and it is the comment of the court at page 147B, that legal advice as to the prospect of success was perfectly valid advice, that has led to suggestions that the court thought that had the advice been bad advice, a ground would have existed. That was not the ratio of the case, and the court was not there engaged upon the specific question which we are addressing. Indeed, the court there specifically adopted the nullity test in Medway, and Medway, we note, said in terms:

“... we do not think that a deliberate decision to abandon taken as a result of advice which is founded on a mistaken view of the law is in itself capable of vitiating the effectiveness of the notice to abandon so as to enable the court to treat it as a nullity.” (p 99)

35.We note that in Wong Wai-yip in which the bulk of the judgment is devoted to the substantive appeal, the Court of Appeal gave leave for an application against conviction to proceed, notwithstanding a previous abandonment, on the basis that wrong legal advice had been provided.  The issue to which the present judgment is directed was not, it is apparent, there debated.  The phrase “wrong advice” from Medway as a basis for a nullity was assumed, without argument or discussion, to include advice on the merits of the appeal, rather than, say, advice as to the effect of abandonment, or of pursuing the appeal.

36.In HKSAR v Chan Kau-hung and others CACC 533 of 2000, 30 November 2001, (unreported) the court allowed the reinstatement of an appeal against sentence where the applicant had abandoned an appeal in the mistaken belief that legal aid had been refused, not only in relation to conviction but also in relation to sentence; and where the Director of Legal Aid had specifically asked the Superintendent of the Tai Tam Correctional Institution not to file the Notice of Abandonment, but the fax arrived too late.  In so far as it might be argued that the phrase which the court there employed, that the applicant had to show “exceptional circumstances justifying our treating her abandonment as a nullity” imported some general discretion, we are satisfied that that court did not seek to do that.  It is indeed rare that an applicant will be able to demonstrate that an abandonment was a nullity, and what is significant for present purposes is that the case had nothing to do with advice as to the merits of the appeal, but everything to do with the fact that there was, on behalf of those acting for the applicant, no intention to abandon the application in relating to sentence, but, through error, it was abandoned.

37.We have considered also Canadian decisions such as R v Watson (1975) 23 CCC (2nd) 366, a decision of the Ontario Court of Appeal in which that Court said that since the abandoned appeal had not been disposed of on its merit the Court “has the power to hear the application and to grant the relief requested, if it is persuaded that it ought to be granted.”  No reference was made to any of the authorities to which Medway refers, nor do we know whether in that province there then existed a provision along the lines of section 83P of the Criminal Procedure Ordinance.  This court, however, is strongly disinclined to move from the road paved by Medway.  To do so would, in our judgment, invite interminable uncertainty and would no doubt engage this court, in case after case, in an examination as to whether advice as to the merits of an appeal was or was not, on one former occasion, good advice, or bad advice or, perhaps, just tenable advice.

38.As was said in Bridges, (page 332):

“In New South Wales, ... a different regime applies”,

different, that is, from Western Australia, Victoria and Queensland; and, we would add, different from England and Wales.  In R v Stubbs (1970)3 NSWR 391 the Court of Criminal Appeal said that there was an inherent jurisdiction in the court to grant leave to withdraw a notice of an abandonment.  There is an apposite comment (page 395) that the right of appeal conferred by the relevant legislation “is an indivisible right which, if exercised, is exercised once and for all ….  To reach any other conclusion would be to depart from the accepted policy that there should be an end to litigation.”

39.A little later, the court went on:

“The question then is whether the Court should exercise its inherent discretion to grant leave to withdraw the notice of abandonment, a discretionary power which is not referred to in the Rules, but which the Court has exercised according to a long-standing practice.  The precise boundaries of this discretionary power have advisedly not been defined, but it has been said repeatedly that the discretion cannot be exercised in cases where there has been a deliberate abandonment of the appeal and that to enable the Court to exercise the discretion in favour of the applicant it must be shown that the abandonment took place as the result of fraud or mistake (R v Moore [1957] 2 All ER, 703n; 41 Cr App Rep 179; R v Cornwall (1957), 74 W.N. (N.S. W.) 483; R v Caddy, [1959] 3 All ER 138n; R v Essex Quarter Sessions Appeals Committee; Ex parte Larkin, [1961] 3 All ER 930; [1962] 1 QB 712). More recently it has been said that, in order to enable the Court to grant leave to withdraw, it must appear on the face of the application that some ground exists for supposing that there may have been fraud or at any rate bad advice given by a legal adviser which has resulted in an unintended and ill-considered decision to abandon the appeal (R v Sutton, [1969] 1 All ER 928; 53 Cr App Rep 269).”

40.That court did not go so far as to define the boundaries of the power; whether or not the discretion was to be exercised only where the abandonment could be shown to have been a nullity; nor whether the bad advice to which that passage refers was bad advice as to the merits of the appeal, or merely as to the effect of abandonment. The case predates Medway.

41.Next is R v Bell (1987) 8 NSWLR 311.  In that case, the applicant abandoned an appeal because he had become concerned about the consequences of pursuing it, since a friend was the subject of harassment which the applicant linked with the appeal, the pursuit of which appeal might reveal, in the event of a retrial, the identity of his accomplices.  There were other suggested notions which he said he harboured about the nature and effect of the appeal, such as the thought that the time served of his sentence would stop running pending the appeal.  That court commented, (at page 313), that although his decision had been deliberate “within the confines of the Criminal Appeal Act 1912 it is this Court's character to ensure that a miscarriage of justice does not pass without remedy... ” and that “in determining whether the rejection of the present application would allow a miscarriage of justice to pass unremedied, it is relevant and permissible for the Court to have regard to the prospects of the appellant establishing that a miscarriage of justice has occurred - that is to say, to the prospects of success in the appeal.” (p 314G).  The court added (p 314C-D): that determination of an appeal pursuant to the New South Wales rule, a rule similar to our rule 39, was “a procedural dismissal.  It is not a dismissal on the merits and the Court retains inherent jurisdiction to go behind the rule.  It will do so if enforcement of the rule would lead to a miscarriage of justice going without remedy.”(Emphasis added).  We add the emphasis because we can fully appreciate the concern thus expressed, and we point to the provision of our section 83P of the Criminal Procedure Ordinance as the route to be travelled.

42.Finally, there is R v Cartwright (1989) 17 NSWLR 243, a case in which an applicant had abandoned an application because a police officer had misinformed him about the effect of a pending appeal; which is another way of saying, about the effect of an abandonment. This decision takes the principles stated in Bell no further.

43.We note that in none of these New South Wales cases was Medway cited, and in none was the court concerned with an abandonment based upon an assessment of the chances of success.  Nonetheless, the tenor of that part of the judgment in Cartwright which was directed to the issue of abandonment was much, we think, along the lines of the Medway test, in its reference to the steps to be taken in deciding whether to permit a withdrawal of a notice:

“For the purpose of exercising that jurisdiction, it is necessary firstly to ascertain how the notice of abandonment came to be filed and then to have regard to the prospects of success which the applicant may have if leave to appeal were granted: R v Bell (1987) 8 NSWLR 311 at 314. Assuming that there were fair prospects of success in the appeal itself, leave may be granted to withdraw the notice if it is established that the applicant had signed it without fully appreciating its significance or the significance of its consequence: R v Griffin (1969) 90 WN (Pt l)(NSW) 548 at 549; [1969] 2 NSWR 497; or as a result of fraud or bad legal advice; R v Stubbs (1970) 71 SR(NSW) 76 at 78; 92 WN(NSW) 768 at 770; [1970] 3 NSWR 392 at 395. Even if the explanation proffered for the abandonment is weak, that circumstance will not necessarily stand in the way of the grant of leave if it be seen that there would be a miscarriage of justice if leave were refused: R v Bell (at 315).” (page 246)

44.These cases were considered by the Court in Bridges.  The Court there has this to say:

“Two observations may be made concerning the above remarks.  First, in my respectful view Grierson at 437 is not authority for the proposition that the court retains an inherent jurisdiction to go behind a rule such as r27 ‘to ensure that a miscarriage of justice does not go unremedied’.  As mentioned above, Dixon J in Grierson at 437 stated merely that:

‘If the prisoner has abandoned his appeal, the Court of Criminal Appeal in England will exercise a discretion to allow him to withdraw his notice of abandonment, notwithstanding that it operates as a dismissal of appeal.’

As is explained in Medway, that discretion is applicable only when the notice of abandonment is a nullity.  There is nothing in Grierson at 437 that goes beyond that.

Secondly, no reference was made in Bell or in Cartwright to Medway or the cases that have followed the reasoning therein.  It is therefore not possible to say whether the latter authorities were drawn to the attention of the courts that decided Bell and Cartwright.

Further, in Bell, it appeared to be a consideration of the Court of Criminal Appeal that unless the court retained inherent jurisdiction ‘to go behind the rule’, miscarriages of justice might occur without there being a remedy therefor.  In this State a possible remedy is provided by s140(1)(a) of the Sentencing Act 1995 (WA) which provides that:

‘(1) A petition for the exercise of the Royal Prerogative of Mercy in relation to an offender convicted on indictment or to the sentence imposed on such an offender, may be referred by the Attorney General to the Court of Criminal Appeal either

(a) for the whole case to be heard and determined as if it were an appeal by the offender against the conviction or against the sentence (as the case may be); or ...’

The significance of a remedy such as s140(1)(a) was recognised by Dixon J in Grierson at 437 (as well as in Hastie at 368).”

45.In so far as there may be a difference between the approach in New South Wales and Canada, on the one hand, and England, Victoria, Queensland and Western Australia on the other, this court prefers to follow the approach spelled by Medway and by Bridges.  It not only has the advantage, in a jurisdiction in which there are frequent applications for leave to withdraw notices of abandonment, of clarity, but accords, to our mind, with the logic that flows from the fact that after a valid abandonment, the court is functus officio; and is not accompanied by a lack of remedy, for section 83P provides such a remedy in appropriate cases.

Conclusion

46.It follows from this full analysis that Yan Suk Yin and Wong Wai Yip should not be taken as authority for a departure from the strict and analytically correct approach heralded by Medway, which strict approach has more regularly been followed by this Court.  There is no inherent jurisdiction to treat an abandonment as a nullity where the abandonment was in truth a deliberate and informed act, and by ‘informed’ we do not import assessments of the chances of success.

47.Applying these principles, the applicant in this case fails to establish that his abandonment was a nullity and his application to treat it as such is rejected.  We do not consider this to be a suitable case for reference under section 83P of the Criminal Procedure Ordinance.

Mr Robert Lee, SADPP and Mr Kelvin Lee, GC of Department of Justice, for the Respondent

Mr Paul Loughran, instructed by Messrs Michael Cheuk, Wong & Kee, for the Applicant