Case Document

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CACC000134B/1983

[Principles applicable to withdrawal of notice of abandonment of appeal.]

IN THE COURT OF APPEAL

1983, No.134

(Criminal)

BETWEEN

	THE QUEEN	Respondent
	and
	CHAN TAK KWONG	2nd Accused / Applicant

Coram: Roberts, C. J., Li & Silke, JJ.A.

Date: 16th August, 1983.

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JUDGMENT

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Roberts, C. J. :

1. On 26th January, 1983, CHAN Tak Kwong was convicted in the High Court, before Baber, J. and a jury, of two offences and was sentenced to seven years' imprisonment for manslaughter and to ten years' for robbery, the sentences to run concurrently.

2. He signed a notice of application for leave to appeal and for the grant of legal aid on 10th February. Attached to this application were grounds of appeal drafted by the applicant himself. The notice, although signed by the applicant on the 10th February, appears only to have been received in the Criminal Appeal Office on 17th February.

3. On 21st February, however, a notice of abandonment was signed by the applicant. He now applies to us for leave to withdraw his notice of abandonment.

4. The grounds of his application are contained in an affidavit, affirmed by the applicant on 13th August. On examination, this affidavit has been shown to be inaccurate and misleading in a number of major particulars.

5. According to this affidavit, the applicant was told, after his conviction, by counsel who defended him at his trial, that he had good grounds for an appeal and that he would send them to the Legal Aid Department. On the next day, Mr. Cowley, a police officer who had been involved in the case, also indicated to him that he thought that an appeal on his part might be successful.

6. Subsequently, the applicant spoke to Mr. Chan, a representative of the Legal Aid Department, who was visiting the Lai Chi Kok Reception Centre, where the applicant was then detained.

7. He asked Mr. Chan whether his counsel would be coming to visit him and was informed that, until he lodged his grounds of appeal, legal aid would not be granted, nor would counsel visit him and give him advice about his appeal.

8. The applicant duly signed an application for leave to appeal on 10th February, accompanied by grounds of appeal prepared by himself.

9. In his affidavit Chan asserts that, "as he thought he was unable to obtain professional legal advice and as his suspicions had been aroused,'' he sought advice from the only source available to him, namely, his fellow prisoners, who advised him that he should not appeal as the court might order a re-trial for murder. This caused him, he said, considerable anguish, and he did not know where to turn or what to do.

10. Subsequent paragraphs in his affidavit describe his admission to hospital on 1st March, due, so he alleges, to worry about his legal position (para. 11).

11. He then describes a further meeting on 2nd March with two police officers, who encouraged him to appeal (para. 12), and to a subsequent conversation with the third defendant at the trial (para.13).

12. The affidavit asserts that the reasons in these paragraphs were among those which disturbed him to such an extent that he felt that he had no alternative but to abandon his appeal. This assertion is clearly misleading, since his decision to abandon his appeal was taken on 21st February, well before the matters which, he asserts in paragraphs 11, 12 and 13, influenced him in taking that course.

13. Nor do we find it easy to accept his assertion that he sought advice from fellow prisoners because he thought he was unable to obtain professional legal advice, since he had already been assured by Mr. Chan of the Legal Aid Department that, when he had lodged the grounds of appeal, there was a possibility of legal aid and had in fact lodged them.

14. The various English authorities on the subject of the withdrawal of a notice of abandonment were considered in great detail by the Court of Appeal in R. v. Medway ^(l)_.

15. Having reviewed the authorities, the court concluded that an appellate court should exercise its discretion to allow an applicant to withdraw a notice of abandonment, only if something had occurred which made the giving of a notice of abandonment not the applicant's true act. As Lawson, J. delivering the judgment of the court, observed (at p.96) -

"If there has been fraud then clearly what he does is not his true act. If there has been a fundamental mistake ... then what he does has not been his true act."

16. He then refers to the following passage from the judgment of Lawton, L.J. in R. v. Peters ⁽²⁾ which distinguishes a mistake of fact from a mistake of judgment -

"The applicant was not making a mistake as to his act. He was making a mistake asto his prospect of success in his application, which is another matter altogether."

17. Only, therefore, in the limited circumstances set out in Medway ⁽¹⁾, sometimes described as amounting to a "nullity", will leave be given to withdraw a notice of abandonment.

18. The applicant in this case, when those parts of the affidavit which appear to us to be no longer valid are discounted, decided to enter his notice of abandonment as a result of conversations with fellow prisoners. He had, therefore, received no legal advice, though he had good reason to expect that, having entered his notice of appeal and grounds, he would in due course be furnished with legal aid.

19. We were also referred to R. v. Keating, which is reported only in the 1982 Volume of Criminal Law Review at p.228, in which an applicant was permitted to withdraw his abandonment on the ground that although his decision was deliberate, it was not "informed", because the advice he received from counsel was erroneous.

20. This is not a case in which erroneous advice was received from counsel. It was, putting it at its highest in the applicant's favour, erroneous advice received from fellow prisoners. We do not see this as sufficient ground for permitting an abandonment to be withdrawn.

21. We do not think and, indeed, counsel for the applicant, who argued with great persuasiveness on his behalf, agreed with us, that it would be proper to allow notices of abandonment to be withdrawn merely because, at the time of the withdrawal, the applicant had received no legal advice. If subsequently he did receive legal advice to the effect that his chances of successful appeal were good, this should not by itself be sufficient grounds on which the court should exercise its discretion to allow the withdrawal of a notice.

22. Consequently, the application to withdraw the notice of abandonment is refused. We would, however, like to suggest to the Crown, though it's wholly a matter of course within the Governor's discretion, that consideration might be given to a reference by the Governor under section 83P. of the Criminal Procedure Ordinance of the purported appeal of this applicant.

(1) [1976] 62 Cr.App.R.85.

(2) [1973] 58 Cr.App.R.328.

(1) [1976] 62 Cr. App. R. 85.

Representation:

Zia Reshid Bey Muftyzade (D.L.A.) for Applicant.

G.W. Alderdice, Sr. Asst. Crown Prosecutor, for Respondent.

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