HKSAR v Md Emran Hossain: When should a Justice of Appeal sit as a Justice of Appeal?
Upon being convicted of burglary by a District Court Judge, MD Emran Hossain (“Hossain”) was sentenced to 3 years’ imprisonment. He sought leave to appeal against conviction and sentence (the “leave application”) under s. 83Y(1) and s. (2)(a) of the Criminal Procedure Ordinance. A single Justice of Appeal heard the leave application and dismissed it, warning Hossain that if he renewed his application and the Court of Appeal came to the conclusion that there was no justification for the renewal of the application, there may be a direction for the loss of any time spent in custody pending his appeal. Hossain renewed his application (the “renewed application”) under s. 83Y(3) of the Ordinance. The Court of Appeal dismissed the renewed application on the basis that the evidence against Hossain was overwhelming. The Court of Appeal further ordered, under s. 83W of the Ordinance, that six weeks of the time in which the applicant was in custody pending the determination of his appeal should not be reckoned as part of his sentence. One of the three Justices that heard the renewed application was the single Justice of Appeal who had heard the leave application. Hossain made no objection when his renewed application was being heard.
The Appeal Committee of the Court of Final Appeal has granted leave to appeal on the following question:
“May a single Justice of Appeal who refused leave to appeal to the Court of Appeal, lawfully sit as a member of the panel if the applicant seeks to have his application determined by the Court of Appeal?”
The appeal will be heard on 2 March 2017. The arguments are expected to encompass discussion on the High Court Ordinance; the Bill of Rights; the perception of apparent bias and judiciary resources.