Criminal law and procedure — appeal — order for “loss of time” — approach — renewed leave application wholly unmeritorious and pursued after due warning of power to order “loss of time” — in such case, power could be exercised even when applicant legally represented and even when represented by leading counsel
D was convicted after trial in the High Court on two counts of conspiracy to defraud. She was refused leave to appeal against conviction by a single Judge of the Court of Appeal. He alerted her to the power to order “loss of time”. Even so, she renewed her leave application before the Full Court of the Court of Appeal. At the commencement of the hearing before it, the Full Court repeated that warning. The matter was stood down for D’s leading counsel to speak to her. Nevertheless, the leave application was persisted in before the Full Court. It was contended by leading counsel on D’s behalf that her submission of “no case to answer” should have been acceded to by the Trial Judge.
Held, refusing leave to appeal and ordering 2 months’ “loss of time”, that:
1) The Judge was entirely right to reject D’s submission of “no case to answer”, and there was no merit in her leave application (R v Galbraith  1 WLR 1039, Attorney-General v Li Fook Shiu Ronald  1 HKC 1 applied). (See paras. 36–37.)
2) “Loss of time” orders were made for the purpose of deterring unmeritorious applications that took up judicial time better spent on meritorious cases (Chau Ching Kay v HKSAR (2002) 5 HKCFAR 540, HKSAR v Wong Lin Hung (2016) 19 HKCFAR 578 applied). (See para. 44.)
3) Full use of the power to order “loss of time” could, and would, be made in renewed leave applications which were wholly without merit and were made after due warning as to that power. (See para. 48.)
4) D had received due warning as to the power to order “loss of time”. (See para. 49.)
5) That she was represented at the renewed leave application by a leading counsel and two junior counsel was to be taken into consideration. But that application was not merely not reasonably arguable, it was wholly devoid of merit. And it had been renewed despite the single Judge’s full and considered judgment refusing leave. Such renewal obliged three other Judges to read no less than six box files of evidence running to more than 1,400 pages, in addition to the parties’ written arguments and lists of authorities. “Loss of time” orders had been made against legally represented applicants who renewed leave applications (Chau Ching Kay v HKSAR (2002) 5 HKCFAR 540, HKSAR v Chan Ka Chun (CACC 45/2015,  HKEC 2420), HKSAR v Yeung See Man (CACC 292/2015,  HKEC 27) applied). (See paras. 50–51.)
Application for leave to appeal against conviction
This was an application for leave to appeal to the Full Court of the Court of Appeal against conviction for conspiracy to defraud after such leave was refused by a single Judge of that Court. The facts are set out in the judgment.
Editorial Note: This judgment states and illustrates the approach to the power to order “loss of time” even when the leave applicant is legally represented and, indeed, even when, as in this case, represented by leading counsel.