Criminal law and procedure — appeal — abandonment of appeal — application to treat abandonment of appeal against sentence as nullity — assistance after abandonment — avenue of redress lay to executive rather than to judiciary in ordinary way Criminal sent
[2017] HKEC 2450
Court of Appeal
Criminal Appeal No 391 of 2014
Macrae and Pang JJA
10, 15 November 2017

Having on legal advice abandoned his application for leave to appeal against sentence, D sought, in reliance upon his assertion that he had subsequently given assistance which led to arrests abroad, to treat such abandonment as a nullity and resuscitate his leave application.

Held, refusing to treat the abandonment as a nullity and dismissing the leave application, that:

  • Despite being asked to do so, D did not provide any valid explanation of how his mind did not go with his abandonment. In any event, the facts belied any such explanation. And even assuming for the sake of argument that there had been subsequent assistance given by D leading to arrests abroad, that would not justify treating the abandonment as a nullity (R v Mak Chan Pui (unrep., CACC 483/1992, [1996] HKEC 1232), HKSAR v T (unrep., CACC 397/2006, [2009] HKEC 989) applied). (See para. 31.)
  • The Court’s function had ceased. However, assuming a necessary link could be established between the asserted assistance and arrests, there would be an avenue open to D even if there had been no conviction and he was not a witness at any trial. That avenue would be for him to petition the Chief Executive (R v Mak Chan Pui (unrep., CACC 483/1992, [1996] HKEC 1232) applied). (See para. 32.)
  • In any event, the Court was not in a position to accept D’s assertions as to assistance and arrests, the respondent not being privy to the asserted assistance. (See para. 33.)

Application

This was an application to treat a notice of abandonment of appeal against sentence as a nullity. The facts are set out in the judgment. 

Jurisdictions: