Appeal – abandonment of appeal – application to treat abandonment of appeal against sentence as nullity – mind did not go with act of abandonment – application refused
D pleaded guilty to trafficking in a dangerous drug, namely 761 g of cocaine, and was sentenced to 14½ years’ imprisonment. On 3 November 2015, D applied for leave to appeal against sentence. On 22 December 2015, D was refused legal aid. On 30 December 2015, D filed a notice of abandonment (the “Notice”) and his appeal was dismissed. On 25 October 2016, D applied to treat the Notice as a nullity and to reinstate his application for leave to appeal based on a “mistaken belief” that he could appeal only if legally represented and then learning in September 2016 that he could have appeared in person. D claimed he had provided assistance to the authorities, which they had deliberately ignored; various government departments had colluded in failing to inform the Courts below of such assistance; and the Customs & Excise Department had tampered with evidence.
Held, dismissing the application to treat the Notice as a nullity and ordering three months’ loss of time for lack of merit, that:
- D had failed to show that his mind did not go with his act of abandonment. At no time before being sentenced had D provided any credible assistance or information for the Customs & Excise Department or any law enforcement agency to follow up on. D had evidently changed his mind about withdrawing his appeal following the first instance decision of HKSAR v Paes Martino Alessander and was seeking to derive a similar benefit to the 40 percent discount in sentence granted for the defendant’s plea of guilty, and his apparent cooperation and assistance to the authorities. There was no comparison between that case and the present one. In any event, the discount given in HKSAR v Paes Martino Alessander was not correct and reliance should not be placed on that sentencing decision again.
- Further, D’s claim that he mistakenly believed he was not able to act in person was rejected as a reason for either abandoning his appeal or waiting so long to resuscitate it. Applicants knew that most of them appeared unrepresented before the Court of Appeal.
- “Loss of time” could properly be ordered, in appropriate circumstances, on an unsuccessful and wholly unmeritorious application to treat an earlier abandonment of an appeal as a nullity. There was no reason why an applicant seeking to treat an abandonment as a nullity should not be an “appellant” under s.83W of the Criminal Procedure Ordinance (Cap. 221).
- Here, D’s application lacked all merit. This was an egregious example of an applicant “toying” with the appeal process. Two Judges of the Court had had to delve in detail into D’s very serious allegations, only to find them wholly untrue; with the hearing taking most of one day. Accordingly, it was appropriate to make a three-month loss of time order.