HKSAR v. Liesering Christopher George

CACC449/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 449 OF 2007

(ON APPEAL FROM DCCC NO. 1015 OF 2007)

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BETWEEN

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Before : Hon Tang VP, Yuen JA and Saw J in Court

Date of Hearing : 25 August 2009

Date of Judgment: 25 August 2009

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JUDGMENT

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Hon Saw J (giving judgment of the Court):

1.On 7 December 2007, the applicant pleaded guilty in the District Court to one count of trafficking in dangerous drugs contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  He was sentenced to be imprisoned for 3 years and 6 months.

2.The facts admitted were that on 23 August 2007, the applicant a South African national, arrived in Hong Kong on board Cathay Pacific flight CX 748 from Johannesburg.  He was intercepted by Customs Officers and in his luggage they found 17 blocks of herbal cannabis which weighed 19.86 kilogrammes and which was valued at approximately HK$1.22 million.  

3.That sentence was clearly within the guidelines for sentencing for trafficking in this quantity of herbal cannabis.

4.On 13 December 2007, he filed a notice of application for leave to appeal his sentence.  That document was a proforma in the English language and Chinese characters.  In that document he wrote in manuscript in English :

“I want to appeal against Sentence in Case No. DCCC–1015–2007 because the sentence is too long.  I didn’t instruct my barrister to say somethings.  I did ask for a resin quality certificate, but my lawyer never did ask for any.”

This he signed in English.

5.The applicant applied to the Director of Legal Aid for assistance to prosecute his application for leave to appeal sentence.

6.On 23 January 2008, the Director of Legal Aid advised him that his application for legal aid was refused.

7.On 11 February 2008, the applicant filed a “Notice of Abandonment” of his application.

8.Rule 39 of the Criminal Appeal Rules provides that :

“An appellant may, at any time before the hearing thereof, abandon his appeal by giving notice of abandonment thereof to the Registrar in Form VII, and upon such notice being received by the Registrar the appeal shall be deemed to have been dismissed by the Court of Appeal.”

The application for leave to appeal was dismissed.

9.On 17 March 2008, the applicant applied to this Court to treat his earlier abandonment as a nullity.

10.In support of this application, the applicant has attached to an affirmation made by him on 19 March 2009 a handwritten submission setting out why it is that his sentence is excessive and should be interfered with.  That document reads as follows :

“Regarding my request for Appeal against Sentence in case DCCC 1015/2007.  Upon conviction in my case I wanted to appeal against my sentence, however at that time I was unaware of sufficient grounds and reasons to support my appeal.

Today with research into cases similar to mine, I have found that in comparison to the appropriate guidelines, I have been dealt a severe injustice with regards to the sentence I received.

The basis for my sentence was never clearly and properly established.  In my trial there was no “Resin Quality Certificate” presented by the prosecution.  The amount of purity, as active THC was therefore not determined, so that the true quantity of cannabis I was charged with trafficking, was not established and therefore the sentence guideline used to convict me giving me a 66 month starting point was fatally flawed.

I would also put forth that subsequent to my trial sentence the overwhelming record of similar and exact same herbal cannabis drug trafficking cases were given lesser sentences and in many cases the record shows cases that involved more quantity in my case received a lesser sentence.

For the above reasons I wish to apply for and be granted leave to appeal my sentence at this time, as I feel the original sentence was unfair, unjust and severe beyond any measure of judicial record.”

11.There is nothing there said as to why it was that he abandoned his earlier application for leave to appeal.  Consequently there is nothing in the material before us or indeed in his submissions this morning which would establish that his earlier abandonment of his application for leave to appeal was a nullity.  In HKSAR v Lai Siu Cheung [2005] 1 HKLRD 1, this court said (10H) :

“There is no inherent jurisdiction to hear an appeal which has been dismissed.  Once an appeal has been dismissed the Court of Appeal is functus officio and it is established that there is no co-existing inherent jurisdiction to enable an appeal to be reopened because of special circumstances falling short of an abandonment having been a nullity.”

and later in the same judgment, this court said (11B) :

“It follows that the only circumstances in which an abandoned appeal may be restored for hearing is if, as a matter of law; that abandonment may properly be treated as if it had never occurred, and the only circumstances in which that course is permissible, is if that abandonment was in law a nullity.”

12.It is manifest from the judgment in Lai Siu Cheung that a person who signs a notice of abandonment in the knowledge that their appeal will thereafter be dismissed will be hard pressed to establish that that abandonment is a nullity.

13.In the instant case there is nothing said or done by the applicant which would justify a conclusion that his abandonment of his application for leave to appeal was a nullity.

14.The applicant chose to abandon his appeal after he had been refused legal aid and this was his decision to make. 

15.The application must therefore be refused.

Hon Tang VP :

16.I agree.

Hon Yuen JA :

17.I agree.

Mr John Reading, SC, DDPP leading Ms Teresa Kam, SPP, of the Department of Justice, for the Respondent

The Applicant in person, present