HKSAR v. Lo Man Nam, Alex

CACC 461/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 461 OF 2007

(ON APPEAL FROM DCCC NO. 768 OF 2007)

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Before:  Hon Tang VP, Lunn J and Wright J in Court

Dateof Hearing: 27 April 2010

Date of Judgment: 27 April 2010

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J U D G M E N T

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Hon Tang VP:

1.The applicant was convicted of 7 counts of blackmail and sentenced to 3 years’ imprisonment in respect of each charge, the sentences were ordered to run concurrently.  He was also ordered to pay compensation of HK$31,000 to the victim.

2.On 19 December 2007, the applicant lodged an application for leave to appeal against conviction and sentence in respect of all the charges.

3.On 15 July 2008, the applicant’s application for leave to appeal against conviction and sentence was dismissed by Yeung JA.

4.On 18 July 2008, the applicant renewed his application for leave to appeal against conviction only.

5.On 1 September 2008, the applicant’s application for renewal of application for leave to appeal against conviction was dismissed upon his filing a Notice of Abandonment on that day.

6.On 6 May 2009, the applicant applied for leave to treat the abandonment as a nullity.

7.That was supported by his affirmation dated 6 May 2009 filed in support of his application:

“My application for leave to appeal against conviction and sentence was refused by a single judge, Justice Yeung, on 15^th July 2008. Subsequently, I filed another application to the Court for leave to appeal against conviction and applied for legal aid. On 26^th August 2008, I also received a formal notice from the Legal Aid Department refusing to issue to me a ‘legal aid certificate’. Since all the 14 grounds of appeals against conviction I drafted earlier on were not accepted by the single judge, after preliminary consideration, I decided to issue to the Court a ‘declaration of abandonment of appeal’ on 1^st September 2008. Besides, since my family was in need of a sum of $20,000 in cash for private use, I enquired of the police office in charge of the case Kwok Wing-sum as to whether I could retrieve the exhibits that belonged to me, that is $34,000 in Hong Kong currency. However, in his letter of reply, the police officer in charge of the case pointed out to me that since I had issued a notice to the High Court requesting to re-apply for leave to appeal, because of this, during the period before the appeal was dealt with, all the exhibits of the case would not be returned to owners. Because of this, I was hoping anxiously that the police could return my property to me as soon as possible; besides, Director of the Legal Aid Department issued me a ‘notice refusing to grant certificate of legal aid’ on 26^th August 2008, that is, refusing to provide legal aid to me. Therefore, in desperation and with the hope the police could return to me my exhibit as soon as possible, I issued a ‘declaration of abandonment of appeal’ to the Court without truly meaning it. ...”

8.Two passages from the judgment in HKSAR v Lai Siu-cheung [2005] 1 HKLRD 1 explain the principles applicable to this application:

“23.   It is well-established in this jurisdiction that the restoration of an appeal after an abandonment is permissible only where it can be demonstrated that the abandonment of the original application was a nullity. …”

“28.   … (When) an appeal has been dismissed, the court is functus unless the dismissal was itself based on an act which was a nullity; that when one asks whether an act is a nullity, it is to the act of abandonment itself that one looks; and the approach recognizes, also, that the right of appeal is conferred by statute and that there is no inherent jurisdiction to entertain the reopening of an appeal once dismissed. The person who, properly informed, knows what the document is that he or she is signing and who, properly informed, knows what the effect is of the document he or she is signing and, with that knowledge, deliberately signs the document, will be hard pressed to show that that act is a nullity. …”

9.It is clear from the applicant’s explanation that he knew what he was doing when he signed and filed the Notice of Abandonment.

10.So the application to treat the abandonment of appeal as a nullity must be refused.  That being the case, we should not inquire into the merits of the actual application for leave to appeal at all.  HKSAR v Law Kam-fai and Anor [2006] 2 HKLRD 879 per Ma CJHC at 893J.

Hon Lunn J:

11.For the reasons set out in the judgment of Tang VP, I too agree that the application must be refused.

Hon Wright J:

12.I agree.

Ms Kathie Cheung, SPP, of the Department of Justice, for the Respondent.

The Applicant, in person, present.