HKSAR v. BUTT AZIZ AKBAR

HCMA 1017/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1017 OF 2004

(ON APPEAL FROM NKS 3483/2004)

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Before: Deputy High Court Judge Barnes in Court

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J U D G M E N T

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Background

1. The Appellant applies, pursuant to section 32 of the Court of Final Appeal Ordinance, Cap. 484, for a certificate that a point of law of great and general importance is involved in a decision of mine, to enable him to appeal to the Court of Final Appeal. I refused his application after hearing submissions. I gave a brief oral judgment at the time and I now give the fuller reasons in writing.

The relevant section

2. Section 32 of Cap. 484 provides:

“	(1)	No appeal shall be admitted unless leave to appeal has been granted by the Court.
	(2)	Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in thedecision or it is shown that substantial and grave injustice has been done.
	(3)	Where the Court of Appeal or the Court of First Instance declines to certify as mentioned in subsection (2), the Court may so certify and grant leave to appeal.
	(4)	………………”          (emphasis applied)

Appellant’s submission

3. The Appellant, after referring to my earlier decision in refusing to treat his Notice of Abandonment of Appeal as a nullity and to reinstate the appeal, submitted that he signed the Notice of Abandonment under ‘special circumstances’ so he should be granted leave to appeal against both my decision and the conviction by the learned magistrate.

Respondent’s submission

4. Ms. Polly Wan, Senior Government Counsel in response referred to the decision HKSAR v Lai Siu Cheung  [2004] 3 HKLRD 1 (an authority I referred to in my earlier decision) and cited another passage therein (at page 12G of the judgment):

“The rational for the distinction between, on the one hand, mistakes or erroneous advice as to the nature and effect of the notice of abandonment and, on the other, the prospect of success, as a ground suggesting that the abandonment is a nullity, is succinctly explained in R v Bridge [1998] 104 A Crim LR 322, at pp.329-330:

The rationale for a mistake as to the prospects of success on appeal (irrespective of the cause of the mistake) not giving rise to a null notice of abandonment is that a notice of abandonment signed or served for that reason remains the true act of the applicant. Wrong advice of this kind does not result in a decision that is not properly informed for the purposes of the nullity test.”

5. Ms. Wan submitted that even with the ‘special circumstances’ alleged by the Appellant, the Appellant was under no misconception concerning the effect and/or consequences of abandoning the appeal. The Appellant failed in the nullity test and the court had no inherent jurisdiction to permit the appeal to be re-opened. Ms. Wan submitted that no point of law of great and general importance was involved in the decision.

Judgment

6. Having considered the submissions I am not convinced that a point of law of great and general importance is involved in the decision and I therefore refused the Appellant’s application. The Appellant is advised he can apply directly to the Court of Final Appeal for leave to appeal.