Cheung Ping-kei v. The Queen

CACC000125/1982

Criminal law - appeal - space for stating grounds of appeal in form of ''Notice of Application for leave to Appeal'' left entirely blank - after expiration of time for appeal Grounds of Appeal filed - the Notice of Application and the Grounds of Appeal could be read as one document but it took its date from the Grounds of Appeal - appeal out of time and incompetent.

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Yang Barker, JJ.A.

Date of hearing: 8 November 1982

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JUDGMENT

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Sir Alan Huggins, V.-P.

1. The Applicant comes before this court asking for leave to appeal against his conviction on a charge of murder. He was tried before a judge and jury and he was convicted and sentenced on 2nd February 1982. Two days later he filed what purported to be an Application for Leave to Appeal. It was in Form 7 in the Schedule to the Criminal Procedure Ordinance, but Part III of that form - which reads: "The grounds are as follows", then followed by some notes - was left completely blank. The statute provides a right of appeal if the rules are complied with and a notice in the prescribed form is required within 28 days of conviction. In the case of a conviction on a charge involving capital punishment this court has no power to extend the time for lodging a notice. Therefore it is vital for us to decide whether the Notice which was filed on 4th February was a valid notice of application or it was a nullity. Although no grounds were stated in that document, on the 2nd July - that is some five months later - grounds of appeal were filed and it is upon those grounds that the Applicant seeks leave to appeal.

2. Mr. Lee has, of course, been faced with the decision of this court in Wong Tak Leung v Reg. 1981 Cr. App. No. 645, where we held that in a case such as this a notice which did not state grounds of appeal was ineffective and that any amended notice - which is in effect what a notice of grounds of appeal is - must be filed within the 28 days allowed. He sought to persuade us that this decision was wrong and he has argued very forcibly the difficulties which face an appellant. Nevertheless we are not persuaded that that previous decision was wrong. It is conceded that there is nothing inherently absurd in the interpretation which was there adopted. It would have been difficult to argue the contrary, since the English rules have been held to provide that a notice which does not state the grounds on which the appeal is to be based is invalid: Reg. v Wilson 1973 Crim. L.R. 572. It must not be overlooked that upon receipt of a valid notice the Registrar is required to take various steps, which include the obtaining of papers for the use of the Court of Appeal. Until he known the grounds of appeal it is impossible for him to decide what papers will be required. If he assumes that a complete transcript of the notes of proceedings will be required, much waste of time and money can result.

3. In the course of the arguments in the two cases there has been used the phrase "breathing life into the original notice of appeal". That, we think, is an unfortunate phrase to use, because it suggests that the original notice is not a nullity and that, although it has the appearance of lifelessness, there is life there already. The true position, we think, appears from the words which were used in Wong Tak Leung v Reg., where we said that, where grounds of appeals were added within the 28 days to a notice which originally did not state the grounds, the two documents could be read together, or, as Mr. Egan has put it, the filing of the grounds completes the whole; and it follows from our previous decision that what happens is not that life is breathed into the original document but that the original document is read as if it were part of the new document. The new document, standing alone, would not be a notice of appeal at all: it merely states grounds of appeal. However, when read with the original notice it becomes a complete notice of appeal with the grounds stated. The importance of the way in which one looks at it is that one has to decide what is the date of the notice of appeal which is then before the court: in our view it is not the date of the original notice – which is, in this case, 4th February: it is the date of the grounds of appeal - which, in this case is 2nd July. By the 2nd July time for appeal had expired. There is no power in such a case to extend the time and therefore this application has to be dismissed.

4. It is urged that such an interpretation is to give too narrow a meaning to the Criminal Appeal Rules. It is pointed out that the English rules expressly provide, in so many words, that the grounds of appeal shall be stated. Our rules do not say in so many words that the grounds must be stated, but in our view on any reasonable interpretation of the rules the grounds must be stated, because the Applicant is obliged to use Form 7 and on any reasonable interpretation of Form 7 he is required to state his grounds of appeal. I referred to the notes which appear in Part III, one of which is that "if grounds of appeal have been settled and signed by counsel, they should be sent with this form and this Part may be left blank". That surely is a clear indication that that space should not normally be left blank and that, if there are not accompanying grounds settled by counsel, that blank must be filled up with the grounds of appeal. That, we think, should not be beyond the comprehension of any applicant.

5. I think that covers all the, matters to which it is necessary to refer and for the reasons we have given this application must be dismissed.

8th November 1982

Representation:

M. Lee, Q.C. & Miss T. Trieu (Alfred Lau & Co.) for Appellant.

K. Egan for Crown/Respondent.