The Queen v. Ku Yuk

IN THE HIGH COURT

Magistracy Appeal
1986, No .1063

BETWEEN

THE QUEEN

and

KU YUK

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Coram: Sir Alan Huggins, Ag. C.J.

_____________

DECISION

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Huggins, Ag. C.J.

1. The Applicant seeks an extension of time for appealing against his conviction on 6th October 1986 in a magistrate's court. On 8th October he 'duly appealed against his sentence, and on a date which is not revealed by the papers before me he sought legal aid in connection with that appeal. The Director of Legal Aid advised him - again on a date which is not revealed - that he had grounds for appealing against convict ion, and on 10th November 1986 he lodged notice of: an application to a magistrate for an extension of time. That application was dismissed on or about 16th December 1986. (No copy of the magistrate's order has been submitted to me). On 17th January 1987 a copy of the Notice of Appeal dated' 10th November 1986 was filed in the High Court without any further application for an extension of time, but on 22^nd January 1987 the present application was filed.

2. The only explanation of the delay in lodging the appeal against conviction appears to be that it was not until he had been advised by the Director of Legal Aid that he appreciated that there might be ground for an appeal. As I have indicated, I do not know when that advice was given. However, I do know that there is no explanation whatever of the delay between the dismissal of the application for an extension of time by the magistrate and the lodging of the papers in the High Court on 17th January 1987 and of the present application on 22nd January.

3. Although no copy of the magistrate's notes of proceedings has been supplied to me, it appears that he invited the Appellant both to explain the delay and to give proper particulars of the proposed grounds of appeal. No further explanation of the delay was forthcoming and the only ground of appeal suggested was that “the evidence of the Appellant was sufficient to rebut … the presumption that he possessed the packet of dangerous drugs for trafficking". The letter notifying the Appellant of the dismissal of his application suggests that the magistrate might have been willing to grant an extension of time, despite the absence of explanation of the delay, if a good ground of appeal had been shown, but that he thought the ground advanced to be unarguable. The letter indicated that he had not believed the evidence of the Appellant which was adduced to rebut the presumption, and it was therefore immaterial that the evidence would have been sufficient to rebut the presumption if it had been believed. On that basis the magistrate properly dismissed the application.

4. There are before me Draft Grounds of Appeal dated 7^th January 1987. They complain (inter alia) that the Statement of Findings, a copy of which has not been provided to me, was inadequate and did not, give reasons for the conclusion that the evidence of the Appellant did not rebut the presumption. If it did not indicate, as the letter notifying the dismissal of the application to the magistrate for an extension of time suggests it should have done, that the magistrate disbelieved the Appellant's evidence, it may have been deficient and that may be a deficiency which would not have been remediable by a subsequent letter.

5. To what extent the Appellant is personally responsible for the failure properly to observe the simple procedure prescribed for such an application is uncertain, but I think. that justice requires that an extension of time should be granted, and I order accordingly.

26 JAN 1987