HKSAR v. Wiwik Lestari AND HKSAR v. Tse Hin Yeung
Court of Appeal
Criminal Appeal No. 185 of 2017
Hon Lunn VP, Macrae and Pang JJA
29th March 2018

Appeal grounds – appeal procedure

In Wiwik Lestari, Counsel for the Applicant had advanced 10 grounds of appeal. The Court had not found it necessary to invite the Prosecution to reply to any of the arguments advanced in grounds 1 to 9, as for reasons set out, none had any merit. The Court had been burdened with 4 box files of authorities in support of meritless grounds of appeal.

The Court of Appeal reminded Counsel of their duty in a criminal appeal to settle grounds which are properly arguable. It is not the function of Counsel to settle as many grounds of appeal as can be thought of regardless of whether they are realistically and properly arguable, as though the number of grounds is some sort of indicator of their ability or industry. Such a practice may lead Counsel to “lose sight of the wood for the trees” and obscure what might otherwise be a good ground of appeal, as happened in this case.

The one ground of appeal on which the appeal was allowed lay undiscovered until the argument was well underway before the Court. Appeal Counsel are experts in their field and are expected to bring professionalism, realism and common sense to the performance of their duty.

In Tse Hin Yeung, the Court of Appeal again expressed its concern about a prevailing culture amongst certain appeal counsel of averring that there was an unfair and unbalanced summingup almost as a matter of routine in any set of grounds of appeal against conviction, regardless of its merits. The Court considered that is it perhaps time that the procedure of applying for leave to appeal before a Single Judge is extended to all appeals, and not simply those where the sentence is 7 years’ imprisonment or less.

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