IN THE COURT OF FINAL APPEAL
Application for Leave to Appeal
Appeal Committee: Chief Justice Li, Mr Justice Litton PJ and Mr Justice Ching PJ
Date of Hearing: 23 September 1997
Date of Determination: 23 September 1997
Chief Justice Li:
1. This is the determination of the Appeal Committee upon an application for leave to appeal brought under section 32 of the Hong Kong Court of Final Appeal Ordinance (“the Ordinance”).
2. On 23 May 1996, the Applicant was convicted after trial before Saied J and a jury of one count of manufacturing a dangerous drugand one count of trafficking in a dangerous drug. On 29 May 1996, he was sentenced to 28 years and 24 years’ imprisonment for therespective counts to be served concurrently.
3. He applies to the Court of Appeal for leave to appeal. On 8 July 1996, the Court of Appeal (Power V-P, Mayo JA and Wong J) refusedhim leave to appeal against conviction. They reduced the sentence on the manufacturing count to 25 years.
4. Upon the Applicant’s notice of motion filed on 5 August 1997, the Court of Appeal (Power V-P, Mortimer V-P and Wong J) on 14 August1997 granted an order, certifying that a point of law of great and general importance is involved in the decision.
5. By notice of motion filed on 23 August 1997, the Applicant applied to this Court for leave to appeal and the grounds in support wereset out. At the same time, the Applicant applied to this Court by summons seeking a determination of (i) what is the time limit foran application for leave to appeal to the Court and (ii) if, on such determination, his application is out of time, an extensionof time for his application.
The certified point of law
6. The point of law certified by the Court of Appeal was not set out in its order made on 14 August 1997. We find it set out in thegrounds in the Applicant’s notice of motion filed on 23 August 1997 for leave to appeal to this Court. It is in these terms:
7. At the trial, the Applicant gave evidence. The direction given by the judge was in these terms:
The time limit
8. Part III of the Ordinance deals with appeals to this Court in criminal matters. It is convenient to set out sections 31, 32 and 33of the Ordinance as amended by the Hong Kong Court of Final Appeal (Amendment) Ordinance No 120 of 1997 which substituted “Courtof First Instance” in place of “High Court” in these provisions.
9. Section 33(1) provides that an application to the Court for leave to appeal shall be made within 28 days from the decision of thelower Court. Does the decision refer to (i) the decision of the lower Court appealed from, or (ii) the decision of the Court certifying (or declining to certify)a point of law of great and general importance?
10. In our judgment, on the proper construction of section 33 in its context, “decision” therein means the former; that is, the decisionof the lower Court appealed from. The “final decision” in sections 31(a) and (b) of course refer to the decision of the lower Courtappealed from. Decision is used in this sense in section 32(2) when it provided for the Court below certifying that a point of lawof great and general importance is involved in the decision. Decision is also used in this sense in section 35 which deals with the detention of the defendant where immediately after a decision of theCourt of Appeal or the Court of First Instance as the case may be, the prosecutor is granted or gives notice that he intends to applyfor leave to appeal. Given the context of these sections in Part III in which “decision” refer to the decision of the Court belowappealed from, the word “decision” in section 33, in our judgment, has the same meaning. The expression has a consistent meaningin these sections.
11. In HKSAR v Mui Po Chu (unreported) FAMC No 2 of 1997 (11 September 1997), the Appeal Committee, in its determination upon an application for leave to appeal,expressed the view (albeit not a concluded one in the absence of full argument) that the following argument appears to be sound:That if the basis for the application is that “substantial and grave injustice has been done”, then no question of certificationby the lower Court arises and the application for leave to appeal must be addressed to the Court itself. If that is correct, then”decision” in section 33(1) would clearly refer to the decision of the lower Court where the “substantial and grave injustice” limbis relied on. It would be odd that where the “point of law” limb is relied on, the “decision” in the same section encompasses quitea different kind of decision, namely, the decision to certify or not. This point supports the conclusion we have reached that decisionin section 33 means the decision of the lower Court appeal from, whichever limb is relied on, and not the decision to certify or not.
12. We also note that, if the contention which we have ruled against were correct, that “decision” in section 33(1) means the decisionto certify (or not), then the time for applying for leave to appeal to the Court would be open ended. The 28 days in section 33(1)would then only be triggered after the decision to certify (or not). But there is no time limit within which the Applicant has toapply to the lower Court for certification. This would have been totally unsatisfactory.
13. We therefore conclude that the time limit for an application for leave to appeal under section 33(1) is 28 days from the date ofthe decision of the lower Court appealed from.
Observations on the time limit
14. In our view, this time limit should not normally pose any significant difficulties. The lower Court gives its decision on an appeal.The arguments on the point of law would already have been thoroughly canvassed at the hearing. The Applicant should be able to decideupon legal advice reasonably promptly whether to apply to the lower Court for certification on the point of law involved; perhapsthis can sometimes be done at the same time as the decision is given. Where he applies, the lower Court should have the same compositionwhere possible. It is incumbent upon the lower Court to hear and deal with his application promptly, bearing in mind the 28 daystime limit. This can usually be done as they have already heard the substantive arguments. Where the lower Court certifies, the Applicantcan then apply to the Court for leave. Where the lower Court declines to certify, the Applicant can then apply to the Court for acertificate and for leave under section 32(3).
15. Where the Applicant relies on the “substantial and grave injustice” limb, on the basis of our view in HKSAR v Mui Po Chu, the Applicant has to apply to the Court within 28 days of the decision of the lower Court appealed from.
The 28 days time limit in section 33(1) is there to be observed. But in a case where the time limit has not been observed, the Courthas the discretion to extend time under section 33(2). The Court would of course consider all the circumstance in considering theexercise of this discretion.
Extension of time
16. The Applicant is out of time. Especially as the Ordinance is new, we have no hesitation in granting the extension of time sought.This is not opposed by the respondent.
Order certifying point of law
17. As we have pointed out, the Court of Appeal order certifying that a point of law of great and general importance is involved in thedecision did not set out the point of law in question. This is unsatisfactory. The order of the lower Court should set out the pointof law in the order itself.
Leave to appeal
18. The question whether the Court has the discretion to refuse leave, where the lower Court has certified a point of law, does not arisein this case, and no arguments have been addressed on this point. We would only observe without expressing any concluded view thatit appears that the Court has such discretion and that it could consider exercising it in circumstances such as that on analysisthe certified point of law is not is substance a point of law or that the answer to it is plain and obvious.
19. Accordingly, we grant the requisite order extending time for the application and we grant leave to appeal. On the appeal, full argumentswould no doubt be addressed both in the written Cased and at the hearing on the certified point of law, as well as the question whetherif the trial judge erred on the point, such error might have led to a miscarriage of justice.
Mr John McLanachan instructed by the Legal Aid Department for the applicant
Mr A A Bruce SC & Mr David Leung (of the Department of Justice) for the respondent