HKSAR v. Law Kam Fai and Another

CACC189/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 189 OF 2005

(ON APPEAL FROM DCCC NO. 786 OF 2004)

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BETWEEN

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Before : Hon Ma CJHC, Stuart-Moore V-P & Stock JA in Court

Date of Hearing: 28 March 2006

Date of Handing Down Judgment: 29 May 2006

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J U D G M E N T

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Hon Ma CJHC (giving the judgment of the Court) :

1.On 19 April 2005, the Applicants Law Kam-fai (the 1st Applicant) and Li Kwai-mo (the 2nd Applicant) were convicted by Deputy Judge Andrew Chan in the District Court of the following offences : -

(1) Charge 1 : Conspiracy to defraud (1st Applicant).

(2) Charge 2 : Conspiracy to pervert the course of public justice (both Applicants).

(3) Charge 4 : Conspiracy to steal, contrary to section 9 of the Theft Ordinance, Cap.210 and sections 159A and 159C of the Crimes Ordinance, Cap.200 (1st Applicant).

(4) Charge 6 : Removal of stones from unleased land, contrary to section 7(1) of the Land (Miscellaneous Provisions) Ordinance, Cap.28 (“the LMPO”)(1st Applicant).

(5) Charge 7 : Unauthorized excavations in unleased land, contrary to section 8(1) of the LMPO (1st Applicant).

At trial, the two Applicants were respectively the 1st and 3rd Defendants.

2.Each was sentenced on 3 May 2005 : -

(1) The 1st Applicant

He was sentenced to 15 months’ imprisonment for the 1st charge, 15 months’ imprisonment for the 2nd charge, 6 months’ imprisonment for the 4th charge and fines of $5,000 for each of the 6th and 7th charges.  The Judge ordered 6 months of the sentence for Charge 1 to run consecutively to the term imposed for Charge 2 and also ordered that 6 months of Charge 4 would run consecutively to Charges 1 and 2, thus making a total of 27 months’ imprisonment.  The Judge then reduced the sentence by a 3 months in view of 1st Applicant’s public service.  In total therefore, the 1st Applicant was sentenced to 24 months’ imprisonment and fines totalling $10,000.

(2) The 2nd Applicant

The 2nd Applicant was sentenced to 11 months’ imprisonment for Charge 2.  He had completed his sentence by the time the appeal was heard.

3.Both Applicants sought leave to appeal against conviction and sentence.  However, on 16 July 2005, the 2nd Applicant abandoned the application for leave to appeal against sentence and it therefore stands dismissed.  The 1st Applicant also abandoned his application for leave to appeal against sentence on 22 September 2005 but by an affirmation dated 24 February 2006 (filed on 18 March 2006), he sought to justify an application to this Court to treat the earlier abandonment as a nullity.

4.Before dealing with the applications for leave to appeal against conviction and the application to treat the 1st Applicant’s abandonment as a nullity, we set out the relevant facts.

Facts

5.The background to the relevant charges was the construction project for the Disneyland park in Hong Kong which commenced in 2003.  The main contractor for the construction was China State Construction Engineering (Hong Kong) Limited (“CSCE”).  The engineering consultant for the project was Maunsell Consultants (Asia) Limited (“Maunsell”).

6.One of the features of Hong Kong Disneyland was an artificial lake that was required for one of the park’s pleasure rides.  The subcontractor for the construction of the lake was Artscapes (Far East) Limited (“Artscapes”).  The contract for the construction was awarded to Artscapes on 22 August 2003, worth about $16 million.

7.According to the tender documents, the artificial lake required a large number of differently sized natural rocks – about 6,000 to 8,000 metric tonnes in all.  Before it was formally awarded the contract, Artscapes looked for a supply of rocks and it set about doing this over the course of August through to October 2003.

8.The supplier of the rocks became one Wong Yat Wah (the 2nd Defendant at the trial) who said he was able to supply the rocks locally from the Tung Chung area.  Various site visits were arranged to examine rocks that might be suitable for the project.  The 2nd Defendant (according to the prosecution) claimed he was authorized by the Tung Chung Rural Committee (“the TCRC”) to excavate the Tung Chung River as some sort of flood prevention measure.  The excavation would enable him to obtain rocks from the river or riverside.  According to him he had voluntarily undertaken this task in order to ease the flooding problem of the river.  A main part of prosecution case was that these claims were false : there was in fact no flooding problem in the Tung Chung River and accordingly the 2nd Defendant could not have been authorized by the TCRC to carry out excavations for this purpose.

9.Artscapes agreed to pay the 2nd Defendant $90 a tonne for the rocks inclusive of transportation to the Disney site.  The supply of rocks began in about mid-October 2003.  However, such was the extent of the excavation by bulldozers and mechanical digger at or near the Tung Chung River in order to obtain the rocks that this led to complaints being made to relevant Government departments.  At the end of October, an environmental engineer with Maunsell (who was PW5 at trial ) filed a complaint.  This led almost immediately to the involvement of a number of Government departments, among them the Agriculture, Fisheries and Conservation Department (“the AFCD”), the District Lands Office of the Lands Department (“the Lands Department”) and the Environmental Protection Department.

10.Before leaving the facts, we should just deal with a general point made by leading counsel for the 1st Applicant regarding the seriousness of the charges.  It was said that at the heart of these charges was an extremely trivial matter, being the mere excavation and theft of some rocks that in all probability no one would ever want or have use for.  There was scarcely concealed criticism of both Government and prosecution authorities in the interest taken in the present case.  In our view, counsel’s submissions here are not relevant to any of the applications before this Court.  Even if the point were relevant, the criticism made of the Government departments and prosecution authorities is unjustified.  This was no mere trivial matter.  The photographs we have seen of the Tung Chung River before and after excavation show a quite disturbing scene.  It was, as was put by the Vice President during submissions, an act of environmental vandalism and all done for profit.  In fairness, it ought to be pointed out that the Tung Chung River has been, since the intervention by Government authorities, restored to a satisfactory state.  The Judge acknowledged all this and said it was a major factor in mitigation.  Lastly, we would just add that the 800 metric tones of rock which had been excavated, were in the end not used for the Disney project.

The trial

11.The trial before Deputy Judge Chan lasted some 31 days.  Thirty-three witnesses were called by the prosecution, comprising Government servants and civilian witnesses.  None of the Defendants (including the two Applicants) elected to give evidence (apart from one of the Defendants giving evidence on the special issue) although the 1st Applicant called two witnesses : a district councillor and a retired civil servant.  Both these witnesses dealt with the issue of flooding in the Tung Chung River.

12.We now deal with the issues arising in the appeal.  It is convenient to deal with the charges in turn.

Charge 1 : Conspiracy to defraud (the 1st Applicant)

13.It was alleged in this charge that the 1st Applicant conspired with the 2nd Defendant to defraud the Hong Kong government by dishonestly and : -

“(i) falsely representing that there had been flooding problem in the Tung Chung River between the sections of Fong Yuen and Shek Lau Po;

(ii) falsely representing that multiple complaints had been lodged with the Government but the Government had not taken any action;

(iii) falsely representing that application had been made to the District Office for Local Public Works a number of times but were never successful;

(iv) falsely representing that Tung Chung Rural Committee had instructed WONG Yat-wah of Tung Po Engineering Company to carry out a flood prevention project in Tung Chung River;

(v) falsely representing that the dredging work carried out in the River was purely for the purpose of solving the flooding problem;

(vi) falsely representing that the rocks excavated from Tung Chung River would be used for constructing a breakwater near Hau Wong Temple;

thereby inducing the Government to delay taking action against their illegal excavation of rocks from Tung Chung River.”

14.As far as the 1st Applicant was concerned, this charge related to conversations between him and officers of the Lands Department.  In the Reasons for Verdict, the Judge referred to the evidence of one Kwok Wah-tsai, who was a Senior Land Executive with the Lands Department in 2002-2003 (he was PW10).  Kwok said that after receiving a letter from the AFCD on 31 October 2003, he and a number of colleagues went on 3 November 2003 to the Tung Chung River to carry out inspections.  There, they met the 1st Applicant and the 2nd Defendant.  The 1st Applicant explained to him that the TCRC had appointed or authorized a company called Tung Po Engineering Company (“Tung Po”), which was owned by the 2nd Defendant, to do work to ease the flooding problem in the Tung Chung River.  The 1st Applicant said that this was for the benefit of the nearby villages as the alleged flooding problem had damaged land and crops.  The 2nd Defendant concurred with this explanation.

15.On being told by one of Kwok’s colleagues that the land that had been excavated was Government land, the 1st Applicant said that applications had continually been made in the past to the District Office for local public works to be carried out.  It was also claimed that the land was private land.

16.The 1st Applicant was then informed that any illegal excavation on Government land would result in prosecution.  After returning to his office, Kwok made further inquiries and discovered that in fact no applications had ever been made to the District Office for any local works to be carried out.  On 11 November 2003, a warning letter was sent to the TCRC demanding restoration of the river.  However, when Kwok went to the river 14 days later, he found no signs of restoration.  On 10 December 2003, he took a cautioned statement from the 2nd Defendant.  His colleague (PW11) took a cautioned statement from the 1st Applicant.

17.Kwok said that had he not been given the explanations by the 1st Applicant on 3 November 2003 (referred to in paragraphs 14 and 15 above), he would immediately have proceeded to take cautioned statements and instituted criminal proceedings.

18.In dealing with this charge, the Judge first determined whether there in fact existed a flooding problem in the Tung Chung River.  He heard extensive evidence on this issue from, among others, officers of the Drainage Services Department, the District Office of the Home Affairs Department and the Fire Services Department.  He found that there was extensive flooding in August 1999 which affected many villages but this involved another river, the Wong Lung Hang (east of the Tung Chung River).  There were other flooding occurrences between 1999 and 2003.  However, the Judge concluded on the evidence that there was never any flooding problem at the relevant section of the Tung Chung River.  In so far as the defence witnesses said anything different, the Judge rejected their evidence.  He also found that no complaints had been made to the District Office, the District Land Office or to the Drainage Services Department regarding flooding.

19.The Judge said this in his Reasons for Verdict : -

“326.   In conclusion, I am satisfied there have been flooding incidents in Tung Chung area between 1999 and year 2003.  However, these flooding incidents were not caused by Tung Chung River.  It was certainly not because of the shallow river bed, presence of boulders and rocks that caused any problem.

327.    There was no flooding problem in Tung Chung River, from Tung Chung River or caused by Tung Chung River.

328.    There was absolutely no flooding problem that justified any excavation, removal of rocks and boulders.”

20.The Judge also noted from a photograph that after excavation, different sizes of rocks were laid out and placed at different locations along the river.  This suggested that the rocks were not removed or excavated for simple disposal to ease some flooding problem.  All along, it had been asserted that the 2nd Defendant did the excavation and removal of rocks on a charitable basis.  The facts suggested otherwise; it was clear that the 2nd Defendant performed these acts for profit.  He charged Artscapes $90 a metric tonne.

21.It is significant that the 1st Applicant has not sought to disturb these findings and conclusions of the Judge.  The significance lies of course in the fact that what the 1st Applicant said to Kwok on 3 November 2003 (see paragraphs 14 and 15 above) about the existence of a flooding problem, complaints made to Government authorities, applications to the District Office for approval and the authorization given to the 2nd Defendant, were false.  The Judge was satisfied that the 1st Applicant and the 2nd Defendant did make the false representations contained in paragraphs (i) to (v) of the charge (but not (vi)).  The agreement necessary to a charge of conspiracy was established as the Judge was “satisfied that the 2nd Defendant and [the 1st Applicant] agreed to speak with one voice to any government officials”.

22.Before us, the main focus of the 1st Applicant’s arguments was on the question of prejudice said to have been caused as a result of the false representations.  Mr Clive Grossman SC (for the 1st Applicant) contended that no prejudice was caused; certainly the false representations did not induce any delay in taking action as alleged in the charge itself (see paragraph 13 above).  In relation to the issue of prejudice, the Judge said this : -

“388.   PW10 stated that if he were not given those excuses on 3 November 2003 at the site, he would proceed to take cautioned statements and initiate criminal proceedings.”

23.In arguing that there was no prejudice, Mr Grossman submitted that whether or not statements would be taken was a matter dependant on legal advice and also that Kwok did not say he would have instituted legal proceedings, only that he was contemplating doing so.

24.We are not persuaded by these submissions : -

(1) In order to understand the relevance of prejudice in a charge of conspiracy to defraud, it is important first to state the law.  A conspiracy to defraud simply means an agreement whereby it was intended by dishonest means to act to the detriment of another person : - see HKSAR v Chan Chun Hong & Another [2006] 1 HKLRD 346 (which reiterated the principles to be found in cases like Welham v DPP [1961] AC 103 and R v Wai Yu Tsang [1992] 1 AC 269).

(2) Two points are, however, of note.  First, for this charge, the concept of detriment is not restricted to economic loss, although it must be acknowledged that in most cases this will be the position.  In the present context, where the deceived party is a public authority, the speech of Lord Radcliffe in Welham is apposite : -

“But in that special line of cases where the person deceived is a public authority or a person holding a public office, deceit may secure an advantage for the deceiver without causing anything that can fairly be called either a pecuniary or an economic injury to the person deceived.”

We would also refer to the advice of the Privy Council delivered by Lord Goff of Chieveley in Wai Yu Tsang at 279H-280B : -

“The question whether particular facts reveal a conspiracy to defraud depends upon what the conspirators have dishonestly agreed to do, and in particular whether they have agreed to practice a fraud on somebody.  For this purpose it is enough for example that, as in Reg. v. Allsop and in the present case, the conspirators have dishonestly agreed to bring about a state of affairs which they realise will or may deceive the victim into so acting, or failing to act, that he will suffer economic loss or his economic interests will be put at risk.” (emphasis added)

(3) Secondly, while the intention to cause detriment is necessary, actual detriment need not be shown.  It is enough merely to show the intent to cause detriment which must be real and not fanciful.

(4) On the facts of the present case, the charge of conspiracy to defraud was, as the Judge found, clearly established.  The dishonest means employed by the 1st Applicant and the 2nd Defendant were the misrepresentations referred to above.  The intention was to secure an advantage to these two persons (and perhaps others) by at least delaying (if not altogether avoiding) the initiation of criminal proceedings against them.  They were hoping, as Lord Goff of Chieveley put it in Wai Yu Tsang at 280, “to bring about a state of affairs which they realise will or may deceive the victim into … failing to act.”  There was certainly an agreement between the 1st Applicant and the 2nd Defendant as to all this.

(5) We have not forgotten, however, that the charge did allege that the Government was actually induced to delay taking action (see paragraph 13 above).  It will be recalled that Mr Grossman submitted that as no prejudice could be shown, the charge could not be established.  However, for the above reasons, as a matter of law a failure to show actual prejudice or detriment would not have been fatal to the offence of conspiracy to defraud being established.  In any event, there was clearly prejudice or detriment suffered by the Government.  Specifically, by reason of the false representations made to Kwok on 3 November 2003, he did not immediately proceed to take cautioned statements, this being the preliminary step to criminal proceedings being initiated.  Mr Grossman referred to the delay as being only 8 days since it was only on 11 November 2003 that a warning letter was sent to the TCRC.  In our view, it was much more than that.  Cautioned statements were not taken from the 1st Applicant and the 2nd Defendant until 10 December 2003.  It is clear that the false representations did cause delay beyond the minimal or trivial, resulting in prejudice.  Apart from anything else, by these false statements, there was an attempt, as Mr Christopher Coghlan (for the Respondent) submitted, to put the authorities “on the wrong track”.  The intention was that of a trusted body that plied on its status to carry off its design to deflect a legitimate inquiry, by reason of which the investigating authorities were compelled to check allegations and records running back several years.

25.In our judgment, the grounds of appeal based on Charge 1 have no merit.

Charge 2 : Conspiracy to pervert the course of public justice (both Applicants)

26.The charge here was that between 9 December 2003 and 28 December 2003, a number of persons including the Applicants agreed to make the following false representations to the Hong Kong Police Force and officers of the Hong Kong Government, namely that : -

(1) the TCRC had held an informal meeting in about July 2003 to discuss the flooding problem of the Tung Chung River; and

(2) during this meeting, it was decided that the 2nd Defendant be authorized by the Committee to excavate rocks from the river to ease the water flow so that the flooding problem there could be solved.

27.The crux of this charge lay in the allegation that on 9 December 2003, a meeting of the TCRC took place (which included the both Applicants) in which the 1st Applicant (who was the Chairman of the Committee) told the people attending the meeting to inform the police, should they be approached in relation to the excavation of rocks from the Tung Chung River, that a meeting of the TCRC took place in about July 2003 to discuss the flooding problem of the river and that the 2nd Defendant had been authorized by the Committee to help solve the problem.  The prosecution case was that these were lies to prevent the authorities from pursuing what otherwise would be the most obvious and appropriate course, that is, to investigate further and initiate prosecutions.

28.The evidence of the 9 December 2003 meeting came from an immunized witness, one Leung Kin San (PW29), who was a villager at Ma Wan Chung Village.  His evidence, as the Judge remarked, was largely unchallenged.  On the morning of 9 December 2003, Leung was informed of a meeting of the TCRC which was to take place later that day.  At the meeting, the 1st Applicant referred to the “Tung Chung River incident” that had been exposed (meaning obviously the discovery that rocks from the river had been excavated).  He further said that an explanation had been given to the media that the excavation was required to ease flooding problems.

29.The 1st Applicant then said that the police would approach members of the TCRC at some stage.  He told them to tell the police the two matters referred to in paragraphs 26 and 27 above.  A letter purporting to authorize the 2nd Defendant was shown at the meeting.

30.According to Leung, the atmosphere at the meeting was serious and those attending remained silent.  No one actually agreed to the proposal.  As far as Leung was concerned, the two matters that the 1st Applicant asked people to tell the police were untrue.

31.Later on the same day, the 1st Applicant was interviewed by the police and an interview under caution was recorded.  The 1st Applicant said that in July 2003, a meeting of the TCRC took place in which village representatives discussed the perennial flooding problems of the Tung Chung River.  He said that after a few meetings, the 2nd Defendant agreed to help and a letter delegating the excavation project to his company (Tung Po) was given.  This of course amounted to authorization.

32.The 2nd Applicant was the Vice-Chairman of the TCRC.  He was also interviewed by the police and made a statement on 17 December 2003.  We have seen this statement.  In it, he referred to a meeting of the TCRC in July 2003.  Although there were mainly discussions about the celebration of the Mid-Autumn Festival, the 1st Applicant also referred to the problem of flooding in the Tung Chung River which had caused hardship to those living nearby.  In subsequent meetings that month, the 1st Applicant proposed a solution to the flooding problem.  He told the Committee that the 2nd Defendant was willing voluntarily to help with the problem.  No objections were raised and the matter was left in the hands of the 1st Applicant and the 2nd Defendant.

33.From these interviews of the Applicants, it is clear to us that, albeit in slightly different terms, they were in effect informing the police that there was a meeting or meetings of the TCRC in July 2003 at which the 2nd Defendant was authorized to help solve the alleged flooding problem.

34.The Judge held that these were lies.  Having concluded that there was in fact no flooding problem in the Tung Chung River (see paragraphs 18 and 19 above), the Judge found little difficulty in disbelieving the assertion that there was any meeting of the TCRC (whether in July or at any other time) in which a flooding problem of the Tung Chung River was discussed and authorization given to the 2nd Defendant to help solve it.

35.The Judge found the charge proved.  He set out the ingredients for the offence by reference to the passage in Archbold Hong Kong 2005 at paragraph 20-15.  Essentially, the offence of perverting the course of justice is established where a person does an act which has a tendency and is intended to pervert the administration of public justice : - see R v Vreones [1891] 1 QB 360, at 369.  A tendency to pervert does not mean that the act will actually pervert the course of justice but it must be shown that the accused’s act or acts must give rise to the possibility that, without more, they may lead to injustice : - see R v Murray (1982) 75 Cr App R 58.  The Judge found these elements, including the additional element of an agreement (since a conspiracy was alleged), proved.

36.The Applicants made three points in support of their submissions that the convictions against them on this charge were unsafe and unsatisfactory : -

(1) No agreement had been proved to found the conspiracy.  It was emphasized to us that at the 9 December 2003 meeting, no one actually agreed to the 1st Applicant’s suggestion.  As far as Leung was concerned, he did not agree to this course.  And if he did not, the same might be said of the others.

(2) There was in any event no tendency to pervert the course of justice.  Even if one accepted that the 1st Applicant was suggesting to all present at the meeting that lies should be told to the authorities, these lies could not have possibly have had any effect on the authorities.  Mr Adrian Bell (for the 2nd Applicant) pointed out that even if the TCRC had authorized the excavations, a criminal offence would still have been committed.  The removal of stones from a public place could not be permitted by the Director of Highways or the Director of Land :  see sections 3, 7(2) and 10(1) of and the Schedule to the LMPO.

(3) Mr Bell further submitted that the 2nd Applicant’s statement dated 17 December 2003 was not false in alleging that a meeting of the TCRC took place in July 2003.  Since it was entirely possible there was a meeting of the Committee at that time, it could not be said that what the 2nd Applicant was saying was false.  He pointed out that Leung could not say there was no meeting of the Committee in July 2003, only that he did not attend one.  He pointed out that Leung was not at that time a member of the TCRC.

37.We do not agree with these submissions : -

(1) It must be acknowledged at once of course that there was no direct evidence of an agreement to the 1st Applicant’s suggestions.  Leung’s evidence was to the effect that everyone present at the meeting was silent.  However, in our judgment, an agreement could legitimately and properly be inferred from the meeting, what was there said and the acts of both Applicants in providing their statements to the police.  The contents of the statements reflected precisely what the 1st Applicant was asking the members of the TCRC to tell the authorities.  We accept the proposition in R v Scott (1979) 68 Cr App R 164 (a case relied on by both Applicants) that a secret and uncommunicated intention to join an illegal enterprise cannot amount to a conspiracy.  But silence and its circumstances (including subsequent conduct) may be such, depending on the facts, from which an agreement or a clear understanding can readily be inferred and that was the position in this case.  In Scott, the English Court of Appeal held there was no conspiracy where a person merely assisted an illegal activity but without knowing that the activity was illegal.  Equally, where a person knew about a conspiracy (and secretly intended to assist) but without actually assisting there was no conspiracy either if this intention was uncommunicated.  Neither of these situations applied in the present case.

(2) The fact that ultimately, only the Director of Highways or the Director of Lands could grant permission for the removal of rocks from a public place, meant of course that even if the TCRC granted authorization to the 2nd Defendant, an offence may well have been committed, at least under the LMPO.  However, the matter does not rest there.  In our view, the Judge was right to find the charge established.  First, the false statements would at least have caused the authorities to spend time in investigating the truth of them.  Secondly, an honest but mistaken belief as to the right to excavate may afford a defence.  Even if it did not, it might well be relevant to the appropriate sentence that a court may impose.  The possibility of injustice was certainly there.

(3) While one can assume in the 2nd Applicant’s favour that a meeting or even meetings of the TCRC could have taken place in July 2003, that was not the focus of the false statements alleged in the charge.  As the Judge pointed out, the relevant feature to bear in mind was the assertion of a meeting in July 2003 at which the alleged flooding problem was discussed and an authorization was given to the 2nd Defendant to ease the alleged problem.

38.The grounds of appeal on this charge similarly do not have merit.

Charges 4, 6 and 7 : Conspiracy to steal, removal of stones from unleased land and unauthorized excavation in unleased land (1st Applicant)

39.These charges, which only affect the 1st Applicant, can conveniently be dealt with together as they all involve the actual taking of the rocks following excavations at the Tung Chung River.  Charge 4 involved the alleged conspiracy between the 1st Applicant and the 2nd Defendant as to the theft of the rocks, Charge 6 the removal of the rocks contrary to section 7(4) of the LMPO and Charge 7 dealt with the unauthorized excavation at the Tung Chung River contrary to section 8 of the same Ordinance.

40.It was not raised as a ground of appeal that the Judge was not entitled on the facts to conclude that the charges were proved against the 1st Applicant.  Rather, the only point raised by Mr Grossman was that these charges were duplicitous and that the conspiracy charge in particular was impermissible, being a restatement of the same offence as the other charges.  This was said to be a breach of the Indictment Rules, Cap.221C.

41.In our view, there is nothing in these points.  Although dealing with the same or similar facts, the charges were quite separate.  No one charge dealt with more than one offence either.  It is to be noted that no submissions were made at trial as to the form of these charges.

Conclusion on conviction

42.For the above reasons, the applications of both Applicants for leave to appeal against conviction are dismissed.

The 1st Applicant’s application to treat the abandonment of his application for leave to appeal against sentence as a nullity

43.It will be recalled that the 1st Applicant’s application for leave to appeal against conviction and sentence was filed on 18 May 2005 but the sentence application was abandoned by him on 22 September 2005.  It was not until 24 February 2006 that the 1st Applicant made an affirmation in which he applied to treat the abandonment as a nullity.

44.Applications of this kind fall to be determined in accordance with the principles laid down by this court in HKSAR v Lai Siu Cheung [2005] 1 HKLRD 1.  The test to be applied is that the court must be satisfied that the abandonment was not the result of a deliberate and informed decision, meaning that applicant’s mind did not go with the act of abandonment.  The court does not inquire into the merits of the actual application for leave to appeal at all; nor should it until the said test has been satisfied.  In other words, the outcome of an application to treat the abandonment as a nullity does not depend on the validity or cogency of the underlying application whose abandonment is sought to be nullified.  How good or bad the underlying application for leave to appeal against conviction or sentence may be, this is irrelevant.  Accordingly, we declined to hear arguments on the merits of the 1st Applicant’s application for leave to appeal against sentence and said we would only do so if it was ordered that the abandonment were to be treated as a nullity.

45.The situations in which the court will or will not treat an abandonment as a nullity are too numerous to set out exhaustively.  Of relevance in the present case is the aspect of wrong advice being given to an applicant.  Where wrong advice is given regarding the merits of an appeal, this will generally not be sufficient : - see Lai Siu Cheung at paragraphs 26 to 28.  In such a situation, in signing a notice of abandonment, an applicant knows exactly what he or she is doing : he knows he has a possible appeal to the Court of Appeal and he is expressly abandoning that possibility.  Whether or not that possibility is a good one (in other words, the prospects on appeal) is not relevant : he still realizes he has that possibility.  On the other hand, where wrong advice is given going to the nature or effect of an act of abandonment, the position may be quite different since the act of abandonment may on analysis not have been a voluntary one at all, or it had an effect of which he was unaware : - see Lai Siu Cheung at paragraph 26 (at page 12C-F).  In most cases, however, without more, a person can be taken to realize that when he is signing a notice of abandonment, he is doing just that.

46.In the present case, the 1st Applicant says this in his affirmation : -

“6. During the visits by my family members at Ma Hang Correctional Institute I always discussed my case with them but it was always their belief including my wife’s that a failure of an appeal against sentence would inevitably attract an increase in sentence and so it was too risky and detrimental to my interest to maintain the appeal against sentence.  Similarly, the times then when I discussed my case with the other inmates at Ma Hang Correctional Institute they always expressed the same view as my family members, so I was persuaded repeatedly by the people I had seen and talked with to abandon my appeal against sentence.  By about September 2005 I was so overcome by the ordeal of imprisonment that I was no longer myself and I succumbed to the consensual views of my family members and the inmates, so I made the erroneous decision to abandon my appeal against sentence.

7. When I abandoned my appeal against sentence I was under a mistaken belief, natured mainly by the common belief amongst the inmates of Ma Hang Correctional Institute that a failure of an appeal against sentence would inevitably result in loss of time served.  I did not fully understand what the phrase ‘loss of time served’ meant saved that it would result in an increase of the sentence I was already serving.”

47.The allegation seems to be that the 1st Applicant misunderstood the nature of an appeal in that he understood an appeal to mean appellate proceedings which, if dismissed, would inevitably result in his having to spend a longer time in prison.  Thus, he was not abandoning an appeal as we know it but one the nature of which was dramatically different.

48.We are prepared to assume for present purposes that such a belief may form the basis of an application to treat an abandonment as a nullity.  However, on the facts, this belief simply cannot be made out.  Nowhere does the 1st Applicant provide any proper or cogent reason why he would believe his relatives’ view that the failure of an appeal would “inevitably” attract an increase in sentence.  The same can be said of the so called “common belief” among the inmates at Ma Hang Prison.  Even more inherently incredible is why the 1st Applicant should have been prepared to accept the views of his relatives and fellow inmates when he presumably had access to legal advice.  After all, he was legally represented at trial and in this appeal.  In summary, the 1st Applicant’s evidence in this regard is far from satisfactory and goes nowhere near satisfying the requisite test.

49.For the above reasons, the application to treat the abandonment as a nullity is also dismissed.

Mr Clive Grossman SC & Mr Philip Wong instructed by Messrs Lau, Chan & Ko for the 1st Applicant

Mr Adrian Bell instructed by Messrs K Y Woo & Co for the 2nd Applicant

Mr Christopher Coghlan, counsel on fiat, for the Respondent