HKSAR v. Leung Kwok Ho

[English Translation – 英譯本]
CACC 67/2003

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 67 OF 2003

(ON APPEAL FROM HCCC NO. 324 OF 2002)

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Before: Hon Tang V-P, Cheung JA and Yeung JA in Court

Date of Hearing: 20 May 2008

Date of Judgment: 20 May 2008

Date of Reasons for Judgment: 27 May 2008

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REASONS FOR JUDGMENT

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Hon Cheung JA (giving reasons for judgment of the Court):

1.The applicant was charged with two counts of “trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap. 134 of the Laws of Hong Kong).  She was convicted after trial before Deputy Judge Pang and a jury and was sentenced to 21 years’ imprisonment.

2.On 20 February 2003, the applicant filed an application for leave to appeal against conviction.  However, on 13 May 2004 she filed a notice of abandonment dated 12 May 2004, and her application for leave to appeal was accordingly dismissed by the court on 13 May 2004.

3.The applicant filed an affidavit with this Court on 16 October 2006, requesting this Court to order that her notice of abandonment was a nullity.

Legal principles

4.In HKSAR v Luo Shui Ji [2007] 3 HKLRD 114, this Court explained the legal principles governing the issue of treating a notice of abandonment as a nullity as follows:

(1)     The right of appeal is conferred by statute.  Once an applicant abandons an appeal, which is then dismissed, the Court of Appeal does not have any inherent jurisdiction to entertain the reopening of the appeal unless the act of the abandonment is treated as a nullity or the matter is referred to the Chief Executive pursuant to section 83P of the Criminal Procedure Ordinance.  The court will treat an applicant’s act of abandoning an appeal as a nullity where, and only where, the act of abandonment was not the result of the applicant’s deliberate and informed decision, in other words, the applicant’s mind did not go with his act of abandonment.

(2)     Whether an applicant’s act of abandonment will be regarded as a nullity depends on whether he understood the effect or consequences of the document he was signing or whether he misapprehended the consequences of persisting with an appeal.  If the erroneous advice relied upon by the applicant relates to the nature or effect of the act of abandonment, the notice of abandonment will be regarded as a nullity.  If the applicant, properly informed and with knowledge of the nature and effect of the document he was about to sign, consciously signed the document, then it will be extremely difficult for him to show that the act of abandonment is a nullity.

Grounds for application

5.In her affidavit of 16 October 2006, the applicant set out the reasons for filing the notice of abandonment:

It was through the Correctional Services Department that I filed a notice on 12 May 2004 to abandon my application for leave to appeal against conviction.  As my applications for legal aid [from the Legal Aid Department] and free legal assistance from the Bar Association were both rejected and I had no means to retain a private lawyer to assist me in the appeal, and the court refused to grant leave for extension of time to pursue the appeal, I had no alternative but to abandon the appeal.

6.In another written submission dated 11 May 2008, the applicant further explained why she abandoned the application for leave to appeal:

In this regard, it is necessary for me to provide your Lordships with an explanation.  At the time when I abandoned the application for appeal, I did misunderstand the consequences of abandoning the appeal.  All along, I believed that the best course open to me was to withdraw the application for appeal.  This was because I had repeatedly applied to the appellate judges for extensions of time as I had been unable to retain a lawyer to act for me, and the appellate judges had granted leave on a number of occasions.  For this very reason, I felt deeply embarrassed and helpless every time I attended the court hearing.  It was only when no further delay was possible that I decided to withdraw the application for appeal for the time being in order not to continue to hold up the Court of Appeal, and I would lodge an appeal again only when I was fully prepared for it. 

When I decided to withdraw the application for appeal for the time being, I genuinely thought that each case would, as a matter of course, offer one chance to appeal and one chance to appeal to the Court of Final Appeal.  I was therefore under the misconception that my right to appeal was preserved even though I abandoned the appeal for the time being.  It is exactly because of such belief that I have never stopped preparing for my appeal even though I have withdrawn the [application for] appeal.

7.In our judgment, the applicant has failed to put forward sufficient grounds to prove that her act of abandoning the application for appeal was a nullity.  In fact, on 13 April 2004 the applicant wrote to the court with the following question:

On the day of the appeal, if I apply again for legal aid but the application is rejected, can I immediately apply to the judge of the Court of Appeal for withdrawal of the appeal?  If the application for withdrawal is granted, will I have the right in future to apply again for appeal out of time?

8.At the hearing on 28 April 2004, this Court explained to the applicant that if she withdrew the application for leave to appeal, she would not be able to make the same application again.  On the same day, this Court adjourned her application for leave to appeal against conviction in order to allow her to seek legal assistance.  Only after that did the applicant file the notice of abandonment.

New ruling

9.The real reason behind the applicant’s present application is that she intends to rely, as a ground of appeal, on a new judicial decision which came into being subsequent to the trial of the present case.

Facts of the present case

10.On 14 July 2002, the applicant was intercepted by Customs Officers while entering the territory via Lowu Check Point.  The Customs Officers found dangerous drugs in the backpack which the applicant was carrying (the first charge); upon search, another packet of dangerous drugs was found inside the applicant’s underpants (the second charge).

Legal presumptions

11.In directing the jury on the legal presumptions in relation to the dangerous drugs inside the applicant’s backpack, Judge Pang said if the applicant was in direct custody of a bag containing dangerous drugs at the time, she would be presumed to possess the dangerous drugs in the bag.  Judge Pang also gave the following direction as to how the applicant could rebut this presumption:

The applicant has to persuade the jury that she did not know there were dangerous drugs inside the backpack.  She should be acquitted if she is able to disprove it; otherwise, she was in possession of the dangerous drugs brought from Shenzhen and should be convicted of the first charge.

12.In HKSAR v. Hung Chan Wa and another (2006) 9 HKCFAR 614, the Court of Final Appeal held that the relevant rule infringed the presumption of innocence and the right to a fair trial to which a defendant to a criminal case was entitled by virtue of the Basic Law and the Hong Kong Bill of Rights Ordinance.

13.On the principle laid down in Hung Chan Wa, Judge Pang’s directions, which imposed on the applicant a “persuasive burden of proof” rather than a mere “evidential burden”, might have rendered the applicant’s conviction on the first charge unsafe.

14.Nevertheless, as the applicant has abandoned the application for leave to appeal, and we are unable to treat the application for abandonment as a nullity, the only avenue open to the applicant is to apply to the Chief Executive in accordance with section 83P of the Criminal Procedure Ordinance for a direction that the court is to re-open the appeal.

Conclusion

15.The application is dismissed.

Ms Lily Ho, Senior Government Counsel, for the Respondent.

The Applicant in person, present.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.