Wong Tak-leung v. The Queen
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CACC000645/1981 Criminal law - practice and procedure - Notice of Appeal not specifying grounds of appeal - ineffective unless grounds filed within time allowed for giving notice of appeal - no power to extend time for giving notice of appeal in case of a conviction involving sentence of death.
BETWEEN
________ Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A. Date of hearing: 16 June 1982 Date of judgment: 16 June 1982 __________ JUDGMENT __________ Sir Alan Huggins, V.-P.: 1. On a trial before a judge and jury this Applicant was convicted on one count of murder, on three counts of wounding with intent and on a fifth count of robbery. He was thereupon sentenced to death on the first count, 15 years on the three wounding charges and 7 years' imprisonment for the robbery. He was convicted and sentenced on 9th July. The time for appeal therefore expired on 6th August. On 16th July he filed Notice of Appeal. The Notice which he filed contained no grounds of appeal. On 8th October 1981 application was made for an extension of time in which to file grounds of appeal. An order for extension of time was made on 12th October and the extension expired on 26th October 1981. By that date no grounds had yet been filed. The application for leave to appeal came before the single judge and on 29th October 1981 he declined to make any order, on the ground that there was no valid application for leave to appeal before the court. 2. There is now before us an application, dated 7th May 1982, for leave to argue a particular ground of appeal. The question which has been posed to us is whether or not there was a proper application before the court. The view we take is this. A Notice of Appeal is required to be in the form specified in the Schedule and that requires that grounds of appeal shall be stated. Unless and until grounds of appeal are specified there is no valid application for leave to appeal. The notice has to be given within 28 days. If within the 28 days grounds of appeal are filed, either in the original notice or by a supplementary notice, then the application is valid and effective, if the grounds are contained in a second document the two documents together constitute the Notice of Appeal. Under s.83Q(4) of the Criminal Procedure Ordinance in a case of a conviction involving sentence of death the Court has no power to extend the time for giving Notice of Appeal. It follows that in our view at the end of the 28 days in this case, namely on 6th August 1981, time for application for leave to appeal against the murder conviction came to an end once and for all, and it was impossible to proceed with that application. 3. There were however the other counts and we see no reason why the learned single judge should not, as he did, make an order extending the time for grounds to be given. However, when that extended time expired, in our view the application in respect of the other counts came to an end. Thereafter it was still open for us to grant an extension of time, but we think that it was too late, on 7th May 1982, to renew an application which had expired so many months before. Therefore we hold that this application is incompetent. 4. We only add this, We have of course made preliminary consideration of the ground which was filed. We have not heard argument upon this ground, but it does give us some consolation, in reaching the conclusion that we have on the point of law, that we think that had that ground been argued the Applicant would have had a very hard row to hoe. 16th June 1982 Representation: K. Bokhary (D.L.A.) for Applicant. Moorfoot for Crown/Respondent. |