HKSAR v. Hill Wong

CACC 329/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 329 OF 2006

(ON APPEAL FROM DCCC NO. 1070 OF 2005)

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Before:  Hon Tang VP, McMahon J and Lunn J in

Date of Hearing: 14 March 2008

Date of Judgment: 14 March 2008

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JUDGMENT

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Hon Tang VP (giving the of the Court):

1.The applicant was convicted after trial of fraud, contrary to section 16A of the Theft Ordinance, Cap. 210, and sentenced to imprisonment for 4 years and 6 months.  He was represented by counsel Mr Jonathan Acton-Bond at trial.  He was granted legal aid in respect of his application for leave to appeal against both conviction and sentence.  Mr Hanif Mohamed Mughal of counsel, was assigned by the Legal Aid Department.  Messrs Tsangs, who were the assigned solicitors at trial, remained the assigned solicitors for the application for leave to appeal.

2.On 4 July 2007, when the applicant’s application came up for hearing before this court, then differently constituted, his application for leave against conviction was dismissed because he told the court he did not wish to pursue it.  His application for leave to appeal against sentence was heard by the court but was dismissed.

3.Prior to the hearing, and on 3 July 2007, Messrs Tsangs had written to the court that the applicant was interviewed by them on 29 June 2007 when he told the solicitors that he would not be pursuing his application for leave to appeal against conviction on 4 July 2007.  But no notice of abandonment of the appeal had been filed prior to the hearing of 4 July 2007.  On 4 July 2007, Stuart-Moore VP, in open court, ascertained from the applicant that he no longer desired to pursue his application for leave to appeal against conviction.

4.We are concerned with the applicant’s application, in his own words, “to appeal against the conviction again”.

5.In his affirmation of 21 August 2007, he claimed that he had abandoned his appeal on conviction because he had been put under great pressure, and that he was reluctant or unwilling to do so.

6.This is what he said about the hearing on 4 July 2007:

“At the hearing of my case on 4^th July, I said in court, ‘Today I do not appeal against conviction.’ At that time, the judge asked me, ‘Will you withdraw the appeal?’ My lawyer replied to the judge for me at that time. However, the judge immediately said, ‘He did not fill in the form for withdrawing the appeal. We have a form for withdrawing appeal. And it has to be done in advance … etc.’ The conversation between the lawyer and the judge was in English, and there was no translation. Since I had no knowledge of the English language, I had no idea of what he said.

It was only after the judge had asked me three times for about 1-3 minutes that I replied to the judge ‘Do you withdraw the appeal against conviction?’ At that time, it made me under great pressure. I was confused by and unclear about the legal proceedings, and I did not know how to handle it. The solicitor ‘turned over and looked at me angrily’. Under such helpless circumstances with great reluctance, I said ‘Yes’ unwillingly.”

7.This morning the applicant emphasised in his oral submission to us that what he had said in court on 4 July 2007 was that “Today I do not appeal against conviction.”  The emphasis being on “today”.

8.The recording of that part of the proceedings is available in court, and the applicant was asked if he wished to listen to it.  I have listened to the recording.  It is clear from the recording that the applicant had not said:

“Today I do not appeal against conviction.”

9.On being told that, the applicant said he did not wish to listen to the recording.  It is quite clear from the recording that he had informed the court that he was not pursuing the application for leave to appeal.  That being the case, although he had not filed the formal notice of abandonment, he had abandoned his appeal against conviction, and it was treated as such.

10.In relation to his allegation that he had been put under pressure by Mr Mughal or the solicitors, they have responded by affirmations.  In his affirmation, Mr Tsang has produced a letter in Chinese dated 29 June 2007 signed by the applicant to the following effect:

“I, Hill Wong, the appellant in the captioned action, hereby inform Messrs Tsangs, Solicitors that I now decide to voluntarily abandon my appeal against conviction.  I wish your firm and Counsel will relay my decision to the judge of the Court of Appeal at the hearing scheduled on 4^th July 2007 because I do not want to say anything at the hearing.

In relation to my appeal against sentence, I know that it may or may not be successful.  When I made the aforesaid decision, I have already known that my appeal against my sentence would not necessarily be successful.”

11.Earlier, on 21 June 2007, the applicant had decided to act in person so far as conviction was concerned.  He was not satisfied with Mr Mughal’s enthusiasm for his case.  Earlier, Mr Mughal has advised him, on 14 June 2007, that having reviewed and reconsidered his case, and perusing the transcript of the proceedings, he was of the view that the appeal against conviction was not arguable.  It is not necessary to go into greater detail, suffice to say, that had the applicant persisted in his application for leave to appeal against conviction, a loss of time order was a distinct possibility.  In any event, following the letter of 21 June 2007, his legal aid certificate in relation to conviction was discharged on 22 June 2007.  Thereafter he acted in person regarding conviction.  That being the case, neither Mr Mughal nor the solicitors would have any reason to want to put pressure on the applicant to abandon his application for leave to appeal against conviction.

12.As we have said, this is the applicant’s application “to appeal against conviction again”.  We treat this as an application by him to treat the abandonment of his appeal as a nullity.  In this connection, the merit of his application for leave to appeal against conviction is not relevant.  The law is well settled.  What we are concerned with is whether the abandonment of his appeal could be treated as a nullity.  We are not concerned with whether the abandoned application might succeed.  The abandonment of his appeal could only be treated as a nullity if the court is satisfied:

“… the abandonment was not the result of a deliberate and informed decision; in other words, that the Applicant’s mind did not go with the act of abandonment.”  per Ma CJHC in HKSAR v Chan Kwok-ming, CACC 519/2005, unreported, dated 3 August 2007.

13.In so deciding, Ma CJHC followed an earlier decision of this court in HKSAR v Lai Siu-cheung [2005] 1 HKLRD 1.  Contrary to the applicant’s submission, this approach applies to the abandonment of appeal in relation to conviction as well as sentence.

14.The applicant is a well-educated man, having been educated up to university level in the Mainland.  On his own case, he was a businessman who was involved in high finance.  There is nothing in the evidence before us to show that he had not genuinely decided not to pursue his appeal.  Or that he did not know what he is doing.  Or that he had been under any undue pressure.

15.There is no merit in this application, and it is dismissed.

Mr Ned Lai, SGC, of the Department of Justice, for the Respondent.

The Applicant, in person, present.