HKSAR v. CHAN KWOK MING
- Citation
- HKSAR v. CHAN KWOK MING
- Status
- Judgment
- Jurisdiction
- Hong Kong
- Court
- Court of Appeal
- Decision
- 9 October 2007
- Posture
- Criminal Appeal / Application to Treat Abandonment as Nullity / Application Before Court of Appeal (judgment on Application)
- Case number
- CACC339/2001
- Language
- English
More details
- Court
- Court of Appeal
- Decision
- 9 October 2007
- Posture
- Criminal Appeal / Application to Treat Abandonment as Nullity / Application Before Court of Appeal (judgment on Application)
- Case number
- CACC339/2001
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The application was dismissed because the affidavit and oral submissions contained no suggestion that the applicant was unaware of the nature or effect of his abandonment; absent such evidence the court will not treat a voluntary abandonment as a nullity.
Court disposition
application dismissed
Orders
- Application to treat the abandonment of the earlier application for leave to appeal as a nullity is dismissed
02
Material facts
Parties
Applicant
Applicant Counsel: in personRespondent
Respondent Counsel: Mr John Reading SC; Mr Paul Ho SGC, Department of JusticeAmounts and remedies
- Sentence on Count 1 (years): 18
- Sentence on Count 2 (years): 8
03
Procedural history
Posture
Criminal Appeal / Application to Treat Abandonment as Nullity / Application Before Court of Appeal (judgment on Application)
04
Questions and positions
Legal issues
- 01
Whether an applicant can treat a prior voluntary abandonment of an application for leave to appeal as a nullity
- 02
Whether the applicant lacked awareness of the nature and effect of the abandonment such that it could be set aside
- 03
Whether delay (over five years) affects the ability to reopen an abandoned appeal
Party arguments
- Applicant
- Applicant asserted he abandoned his leave application because legal aid was refused and he lacked funds to retain counsel; he later realized he could represent himself and sought a chance to appeal by treating his prior abandonment as a nullity.
- Respondent
- Respondent maintained that the abandonment was voluntary and effective; there was no evidence the applicant was unaware of the nature or effect of his abandonment and thus no basis to set it aside; the application should be dismissed.
05
Court’s reasoning
Legal principles
- 01
Court judgment (Stuart-Moore VP et al.)
A voluntary abandonment of an appeal is final and will not be set aside absent evidence that the abandoning party did not understand the nature or effect of the act or was coerced.
- 02
Court judgment (Stuart-Moore VP et al.)
An applicant seeking to reopen or nullify a prior abandonment bears the evidential burden of showing lack of awareness or other exceptional circumstances justifying setting aside the abandonment.
06
Ratio, limits and disposition
Ratio decidendi
The application was dismissed because the affidavit and oral submissions contained no suggestion that the applicant was unaware of the nature or effect of his abandonment; absent such evidence the court will not treat a voluntary abandonment as a nullity.
Obiter and limits
- The court noted the application was made over five years after the abandonment, a material delay though not the sole basis for dismissal.
- The applicant's lack of legal aid and subsequent ability to self-represent does not, without more, invalidate a prior voluntary abandonment.
Court disposition
application dismissed
- Application to treat the abandonment of the earlier application for leave to appeal as a nullity is dismissed
Source and reliance status
Court of Appeal · 9 October 2007
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Court of Appeal
Judgment· 9 October 2007
bjbj on nomacro Applicant ____ Before: Hon Stuart-Moore VP, Stock JA and Lunn J Date of Hearing: 9 October 2007 Date of Judgment: 9 October 2007
J U D G M E N T Stuart-Moore, macrobutton nomacro VP (giving the judgment of the Court): The applicant was convicted after trial before Gall J and a jury on a count of attempting to discharge loaded arms at two named police officers with intent to prevent the lawful detainer of himself, contrary to section 17(c) of the Offences against the Person Ordinance, Cap. 212 (count 1). He had earlier pleaded guilty to a 2nd count of carrying a 9 mm calibre pistol with intent to commit an arrestable offence while he had the firearm with him, contrary to section 18(1) of the Firearms and Ammunition Ordinance, Cap.
238. The applicant received concurrent sentences of 18 and 8 years, respectively, on these counts. On 11 September 2001, the applicant filed a notice applying for leave to appeal against conviction on the 1st count alone. However on 14 December 2001, the applicant filed a notice of abandonment and, as a result, this leave application was formally dismissed on 17 December 2001. Then, on 27 December 2001, the applicant filed an application for leave to appeal against his sentence out of time and again followed this by filing a notice of abandonment, this one dated 15 March 2002. This leave application was formally dismissed on the same day. The matter now comes before us, over 5 years later, as an application to treat the abandonment of his earlier application for leave to appeal against conviction as a nullity. The reasons are given in the applicant s affidavit dated 24 April 2007 in which he states: I had once lodged an application for Legal Aid, which was rejected. At that time, I did not have money to engage a private lawyer. I thought it might put me in a disadvantageous position without a legal representative in the appeal proceeding of the case. Therefore, I abandoned the appeal application. Recently, I finally realized that I could represent myself to have an opportunity for a fair appeal without a legal representative. Therefore, I re-apply for an appeal, and I wish the
Court would give me a chance. There is no suggestion contained in the affidavit or in anything said to us by the applicant in these proceedings that the applicant was unaware of the nature or effect of his act of abandonment. Accordingly, this application is dismissed. (M. Stuart-Moore) macrobutton nomacro Vice-President (Frank Stock) Justice of Appeal (Michael Lunn) Judge of the Court of First Instance Mr John Reading, SC, DDPP and Mr Paul Ho, SGC, of the Department of Justice, for the Respondent. The macrobutton nomacro Applicant , in person.
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