HKSAR v. Lau Kwok and Others

CACC000529/2001

CACC 529/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 529 OF 2001

(ON APPEAL FROM DCCC 381 OF 2001)

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Coram: Hon Stuart-Moore VP, Stock JA and Yeung JA

Date of Hearing: 4 December 2002

Date of Decision: 4 December 2002

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D EC I S I O N

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Stuart-Moore VP (giving the decision of the Court):

1.Mr Bruce, SC, advised on 28 March 2002 that arguable grounds for appeal against conviction were to be found on the papers relating to D2's application. That was over eight months ago. He settled perfected grounds of appeal on 27 May 2002. It was only on 12 November 2002, in appellate proceedings listed for today, 4 December 2002, that he decided there were no arguable grounds. He wrote a letter to his instructing solicitors saying that two authorities (without specifying to which authorities he was referring) were against the proposition that he had set out in his grounds. Mr Bruce neither informed the Respondent nor us of his position.

2.We heard also from Mr Leung Man-wai, the principal in the firm of solicitors acting for D2. We do not criticize his conduct in the particular circumstances which have arisen when it was for counsel to inform the Respondent and the court of the decision he had made not to pursue his grounds, and when Mr Leung's firm was still seeking D2's instructions about how they should proceed.

3.As Mr Bruce recognises, once counsel had determined that his original grounds formed months ago were no longer tenable and would not be advanced by him, it was incumbent on him to inform the Registrar in this building and the Respondent. His failure to do so has wasted not only for ourselves but also for counsel on behalf of the Respondent hours of work and it has caused a wasted day in court. We have been effectively forced into the position of having to grant an adjournment today to D2 as well as for the two other Applicants, separately represented, whose cases were ready to proceed.

4.Again, Mr Bruce has recognised that this was an unacceptable discourtesy to this court and to his opponent. If we had the power to do so, we would have considered making a wasted costs order against him. Yet again, this court has been left without the sanction of wasted costs to meet the kind of circumstances which have arisen today.

5.An application has been made on behalf of D2 by Mr Hemmings, who was instructed only yesterday, for an adjournment in order that a second opinion can now be taken relating to the application for leave to appeal against D2's conviction. We have decided that we will have to accede to this application. We will put these matters over as a whole to be dealt with at a later date and, if possible, the same court will hear the application when it is ready.

Representation:

Mr Gary Lam, SGC, of the Department of Justice, for the Respondent.

Mr James H.M. McGowan, instructed by the Director of Legal Aid, for D1 and D2/Applicants (re: Sentence).

Mr John Hemmings, instructed by Messrs Chong, Leung & Co. for D2/Applicant (re: Conviction).

Mr Phillip Ross, instructed by Bar Free Legal Services Scheme, for D5/Applicant (re: Sentence).