Hong Kong Case Law: Decisions & Judgments

Topic

Nullity test

Legal area

Court

16 Feb 2017

HKSAR v. BORGES MORAES ROSANA

Citation

HKSAR v. BORGES MORAES ROSANA
Court

Court of Appeal
Case number

CACC179/2014

The abandonment of the appeal was a deliberate and informed decision by the applicant; she failed to discharge the burden of proving the abandonment was a nullity (not deliberate/informed), delay of over two years and surrounding circumstances confirmed she intended to abandon the appeal, therefore the Court lacked jurisdiction to hear the appeal and the application to treat the abandonment as a nullity was refused.
26 Aug 2016

HKSAR v. MAEDA HISATO

Citation

HKSAR v. MAEDA HISATO
Court

Court of Appeal
Case number

CACC367/2014

Applicant's Notice of Abandonment was executed under a mistake of fact about the need for legal representation such that his mind did not go with the act; mistake of fact can ground nullity under the Medway test; therefore the abandonment was treated as a nullity and the application for leave to appeal was adjourned for hearing with directions for the appeal bundle and written submissions.
19 Jul 2013

HKSAR v. EKELEDO NANDIPHA EUNICE

Citation

HKSAR v. EKELEDO NANDIPHA EUNICE
Court

Court of Appeal
Case number

CACC270/2011

The applicant's signed notice of abandonment demonstrated a deliberate and informed decision; lack of legal aid did not render that decision a nullity; therefore the abandonment could not be treated as a nullity and the court had no jurisdiction to entertain the abandoned appeal.
11 Jul 2013

HKSAR v. MBACHU CHARLES SUNDAY

Citation

HKSAR v. MBACHU CHARLES SUNDAY<br>
Court

Court of Appeal
Case number

CACC307/2009

The Court dismissed the application to treat the Notice of Abandonment as a nullity because the applicant failed to show the abandonment was not a deliberate and informed decision; moreover, even on the merits the conviction was supported by overwhelming evidence so it was neither unsafe nor unsatisfactory, and the conviction and sentence were therefore affirmed.
4 Jan 2013

HKSAR v. WU CHI KEUNG

Citation

HKSAR v. WU CHI KEUNG
Court

Court of Appeal
Case number

CACC120/2000

Applicant failed to discharge the burden of proving the abandonment was a legal nullity because evidence showed he had received legal advice before signing, the Notice expressly abandoned all further proceedings and was translated to him, his account was chronologically inconsistent, and the more than ten year delay undermined credibility and suggested mere change of mind.
31 May 2012

HKSAR v. CHUNG MAN CHI

Citation

HKSAR v. CHUNG MAN CHI
Court

Court of Appeal
Case number

CACC334/2005

The applicant failed to discharge the burden of proving that his 2006 notice of abandonment was not a deliberate and informed act; his explanations were not credible and therefore the abandonment was not a nullity, so the application to revive leave to appeal was refused.
24 Aug 2011

HKSAR v. OOI LIM KHOON

Citation

HKSAR v. OOI LIM KHOON
Court

Court of Appeal
Case number

CACC147/2003

Applicant's explanation showed only a mistaken belief about prospects of success and familiarity with the law, not a lack of understanding of the nature or effect of the Notice of Abandonment; therefore the abandonment was not a nullity and the application to treat it as such must be dismissed.
3 Jun 2005

HKSAR v. BUTT AZIZ AKBAR

Citation

HKSAR v. BUTT AZIZ AKBAR
Court

Court of First Instance
Case number

HCMA1017/2004

The judge refused to certify a point of law of great and general importance because the appellant failed the nullity test for the Notice of Abandonment; accordingly the application for a certificate under s.32 was refused and there was no basis to reopen the appeal.
23 Dec 2003

HKSAR v. LAI SIU CHEUNG

Citation

HKSAR v. LAI SIU CHEUNG
Court

Court of Appeal
Case number

CACC487/2002

Applying the Medway nullity test, the court held that only an abandonment that was not a deliberate and informed act (i.e. a nullity) can be set aside; mistaken or incorrect advice about prospects of success does not amount to such a nullity. The applicant failed to establish that his abandonment was a nullity and the application was rejected; no referral under section 83P was warranted.
6 Mar 1990

THE QUEEN v. WONG WAI LEUNG

Citation

THE QUEEN v. WONG WAI LEUNG
Court

Court of Appeal
Case number

CACC369/1989

The Court refused leave to withdraw the Notice of Abandonment because the abandonment was not shown to be a nullity; the applicant was not shown to have been misled by his solicitors' clerk and the grounds of appeal did not disclose any injustice warranting advice to petition the Governor for a Reference.