HKSAR v. KWAN WING KEI

CACC 483/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 483 OF 2004

(ON APPEAL FROM HCMP NO. 2209 OF 2004 AND HCCC 239 OF 1990)

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BETWEEN

  HKSAR Respondent
  and  
  YEUNG MOK YEH 楊鏌鎁 Applicant

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and

CACC 57/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 57 OF 2005

(ON APPEAL FROM HCMP NO. 2211 OF 2004 AND HCCC 239 OF 1990)

———————-

BETWEEN

  HKSAR Respondent
  and  
  KWAN WING KEI 關永基 Applicant

——————–

Before : Hon Ma CJHC, Woo V-P and Stock JA in Court

Dates of Hearing : 6 October 2005

Date of Judgment : 6 October 2005

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J U D G M E N T

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Hon Stock JA:

1. On 18 July 2005 we handed down a judgment in these two cases which were applications for leave to appeal against certain fixed termsof imprisonment imposed under section 67C of the Criminal Procedure Ordinance, Cap. 221. We granted leave but dismissed the appeals.

2. Applications have now been filed by the applicants who are represented by counsel who in turn is instructed by the Director of LegalAid. Each application is dated 11 August 2005. The applications are entitled:

“Application for Certificate to Apply to the Court of Final Appeal”.

3. We should not have to point out that there is no such thing as a certificate to apply to the Court of Final Appeal.

4. The applications seek “an order that the appellant has leave to appeal to the Court of Final Appeal”.

5. We should not have to point out that this Court has no power in criminal cases to grant leave to appeal to the Court of Final Appeal. This court merely has power under section 32 of the Court of Final Appeal Ordinance, Cap. 484 to issue a certificate that a pointof law of great and general importance is involved in the decision.

6. The grounds of the application are as follows:

‘This appeal involves a point of law of great and general importance, namely:

“Does section 67(5)(a) of the Criminal Procedure Ordinance, Cap. 221 Laws of Hong Kong, or otherwise, entitle a sentencing judge to make a specific deduction to an Appellant on an accountof that appellant’s performance whilst imprisoned from, the term which otherwise would have been appropriate?”’

7. Section 67(5)(a) of the Ordinance does not exist. We presume, and counsel has confirmed, that he means section 67C(5)(a).

8. A sentencing judge does not deal with appellants. He deals with defendants.

9. By the words ‘or otherwise’, in the phrase “Does section 67(5)(a) of the Ordinance, or otherwise entitle a judge …”, wepresumed that counsel meant: “Does section 67C(5)(a), or any other provision of law, entitle a judge ….”. But Mr Donald saysnot. He says it should be read to mean “any other provision where people have spent a considerable time in prison before sentence.”

10. Applications for a certificate under section 32(2) – assuming that this is what was intended by this application – should bemade immediately after judgment is given: see Practice Direction 2.2. But where a judgment is handed down, as it was in this case,an application for a certificate should be made within 7 days of the handing down of the judgment: see Practice Direction 4.3. Thathas not been done. The application was made 24 days after the handing down of judgment. There is no explanation in the papers forthis delay. There is no application for an extension of time. Indeed, there is no indication of any awareness that time has beenexceeded. We note, further, that the time within which an application to the Court of Final Appeal for leave is required, by section33(1) of the Court of Final Appeal Ordinance, to be made is 28 days. That time has long since gone. No application under section33 has been made. Counsel says he misunderstood the effect of the statutory provisions at the time, though how, had he studied thePractice Directions, he could have done so is difficult to see. We note that he came to this Court without either a copy of theCourt of Final Appeal Ordinance (the Ordinance under which this application is made) or a copy of the Criminal Procedure Ordinance (the Ordinance which houses the provision purportedly the subject of this appeal). That particular omission, is within our experience,by no means unique in criminal cases in this jurisdiction.

11. We do not see why the Court of Appeal – or any court for that matter – should be expected to shrug off the type of sloppinesswith which this application has been approached. We do not see why we should not expect a disciplined and professional approach. We do not see why this court, or any other court, should do the homework which counsel are supposedly trained to do, which a modicumof professionalism requires counsel to do, and which counsel are paid to do, paid in this case, as so often in criminal matters,at public expense. And if it be wondered why concerns of this kind are included in a judgment, it is because a lack of proper disciplineand preparation and presentation in criminal cases is not unique to this case. We will not entertain applications thus presented,and for these reasons alone the applications are dismissed.

12. This is yet another example of a waste of public funds. It is yet another example, of which this Court has complained on severaloccasions, where the courts are denuded of any power to do anything about it save to wring its hands in some dismay at the charadethat is constituted by the wasted costs provisions of the Costs in Criminal Cases Ordinance, Cap. 492. Unlike provisions in other jurisdictions, which are meaningful, in Hong Kong the court is restricted to making a wastedcosts order where counsel fails to appear or is late without reasonable cause, leading to an adjournment. This provision is a nonsense,for it is a circumstance which in the combined experience of the members of this bench has never happened and will, on any conceivableview, be a rare occurrence.

13. To present the complete picture of the litany of errors, we have been trying to ascertain what it is in this case about which complaintis made. In the judgment handed down in July, we made it perfectly clear that under the terms of section 67C of the Criminal Procedure Ordinance, a judge was duty bound to take into account the conduct of a prisoner after he had been first sentenced. That determination ischallenged by nobody. It can hardly be challenged by the appellants, for that is precisely the finding that the appellants askedthis Court to make in their favour. So the only conceivable point, as the question was drawn, is whether other than under section 67C a sentencing judge should take into account conduct after initial incarceration. But this case was concerned with section 67C, although it is true that we did make reference to general sentencing principles. Counsel then told us that his complaint was thatit was section 67C that we approached too narrowly; in other words that although he accepts that we in effect said that a judge was entitled under s67C to make a deduction on account of a convicted person’s conduct in prison – in which case, we remark, the question should nothave been framed as it was – nonetheless, we should not have said that it was not the judge’s function to substitute himselffor the Long Term Prison Sentences Review Board constituted under the Ordinance of that name, Cap. 524; and that had we not takenthat approach, the result would or may have been different. But this was not the question posed. So we adjourned to allow Mr Donaldto redraw the question. The question redrawn is:

“Does section 67C(5)(a) of the Criminal Procedure Ordinance, Cap. 221 Laws of Hong Kong, entitle the sentencing judge to ‘intrude’ upon the province which the legislature has entrustedto others?”

As put, the question answers itself.

Hon Ma CJHC:

14. I agree, for the reasons given by my Lord Mr Justice Stock JA, that the present applications should be dismissed. I wish, however,to make the following observations. The courts are concerned with the ends of justice: particularly the interests of defendants and generally the interests of the public. Counsel and solicitors are expectedto view their work in precisely the same light. Solicitors are expected to do more than merely refer all matters to counsel. Theproper observance of time limits and practice directions are matters which a competent solicitor is expected to do. If in performingits functions to those ends, the court finds it necessary at times to express itself in exasperation on the conduct and performanceof counsel and solicitors, as in the present case, and to insist on a high degree of professionalism and discipline, then so be it. This court and other courts will insist upon professionalism and will continue to watch for waste of public funds, and counsel andsolicitors should in future expect that work of an unacceptably low standard will be referred to the relevant professional body.

Hon Woo V-P:

15. I agree entirely with what has been said by the Chief Judge and Mr Justice Stock JA.

Hon Ma CJHC:

16. The applications are accordingly dismissed.

(Geoffrey Ma)
Chief Judge, High Court
(K.H. Woo)
Vice-President
(Frank Stock)
Justice of Appeal

Mr Richard D Donald instructed by Messrs Reimer & Partners assigned by DLA for Applicant Kwan Wing Kei in CACC 57/2005 and ApplicantYeung Mok Yeh in CACC 483/2004

Mr D G Saw SC, DDPP and Mr Vincent Wong, SGC of the Department of Justice for the Respondent