LLAW3099 Criminal Procedure

LLAW3099 Criminal Procedure

Chapter 10: Criminal Appeal

Learning objectives
1. Generally;
2. Appeal of a magistrate’s order, determination, conviction and/or sentence;
3. Appeal of a magistrate’s order, determination, conviction and/or sentence in Juvenile Court;
4. Appeal of an order, determination, conviction and/or sentence by DC judge / CFI judge +
jury;
5. Bail pending appeal;
6. Matters during appeal hearing;
7. Appeal of HCMA/CACC to CFA

1. Generally
1.1 Courts do not have inherent appellate jurisdiction; appeals are Mok Charles v Tam
creatures of statutes. Wai Ho
- Cannot be determined by consent

The right to appeal a criminal conviction/sentence is a constitutional HKBORO art.11(4)

right.

Appellant’s counsel should consult trial counsel to avoid lack of HKSAR v Mistun
knowledge of what happened at trial.

Barrister should settle grounds of appeal unless they are properly Bar Code para.10.24
arguable.

2. Appeal of a magistrate’s order, determination, conviction and/or sentence

2.1 Generally

Defendant’s option – 3 + 1 routes

- Self-review by magistrate (MO s.104)
- Appeal to CFI on conviction and/or sentence (MO s.113)
- Apply to CFI by way of case stated (MO s.105)
- [Judicial review by CFI (see HCO s.12)]

Section Period Form

Self-review by MO s.104 Within 14 clear In writing
magistrate days after
determination
Appeal agst MO ss.113, 114 Within 14 days In writing +
conviction after day of Form 101
sentence
Appeal agst MO ss.113, 114 Within 14 days In writing +
sentence after day of Form 102
sentence
Case stated MO s.105 Within 14 clear In writing +
days after Form 95
determination

Prosecution’s option – 3 + 1 routes

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- Self-review by magistrate (MO s.104)

- Apply to CFI by way of case stated (MO s.105)
- Apply to CA for review of sentence (CPO s.81A)
- [Judicial review by CFI (see HCO s.12)]

Self-review by magistrate (MO s.104)

- Initiated by Defendant or Prosecution
- Or by presiding magistrate

Note PD 9.6 – Magistracy Appeals in the CFI

2.2 Self-review of magistrate by D/P/magistrate (MO s.104)

The purpose is to provide speedy and simple means of correcting HKSAR v Chan Pak
mistakes without incurring time and expense of appeal. Hoe
- Wide powers
- No prescription/limit on grounds/factors to be accounted for
- Two stages: whether to grant review + what should be done

MO s.104
- For the parties:
o Within 14 clear days after determination MO s.104(1)
o Apply to magistrate in writing to clerk MO s.104(2)
o Must be given an opportunity to be heard MO s.104(4A)
o No application for review if appeal proceedings MO s.104(9)
launched under e.g. MO s.113, CPO s.81A, JR,
unless appeal proceedings abandoned
o No appeal from refusal to grant review MO s.104(10)
- For the magistrate:
o On his own initiative MO s.104(5)
o Within 14 clear days after determination: re-open the MO s.104(5)
case
MO s.104(5)
o And then within or after 14 days: review his decision
- Powers of review: MO s.104(6)
o Re-open/re-hear case wholly or in part; take fresh
evidence; or reverse/vary/confirm previous decision MO s.104(7)
o Can order the case to be reheard by another
magistrate MO s.104(8)
o Have all the powers at trial

Bail pending appeal MO s.119(1)

- Magistrate may admit D to appeal immediately after
sentence on undertaking that appeal would be filed on the
same day

2.3 Appeal by D on conviction and/or sentence to CFI (MO s.113)

Eligibility for using MO s.113

- Any person aggrieved by any conviction order or MO s.113(1)
determination who did NOT plead guilty => appeal from
conviction/order/determination
o Aggrieved: include people other than convicted but
subject to orders (e.g. claimant in forfeiture order)
- Any person pleaded/found guilty => appeal sentence MO s.113(2)

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Time frame and forms for using MO s.113

- Within 14 days of sentence giving magistrates’ clerk notice MO s.114(a)

o If self-review invoked, then time starts to run only MO s.104(10)
when self-review determined
- Form 101 for appeal against conviction
- Form 102 for appeal against sentence
- File both if appeal against both

Steps taken by court in relation to MO s.113

- Magistrate prepares statement of findings with reasons for
verdict
- Clerk transmits notice of appeal, depositions, findings on MO s.116
facts and other grounds of decision
o Copies given to the parties
- Basic appeal bundle is provided prepared in accordance with
PD 9.6
- Appellant not entitled as of right to set of full transcript

Nature of HCMA appeals and power of judge

- Appeal by way of rehearing of evidence at trial Chou Shih Bin v
supplemented by further evidence as court may admit HKSAR
o Depositions before magistrate treated as admissible MO s.118(1)(a)
as evidence of evidence given
o Can receive additional fresh evidence MO s.118(1)(b)
- May make whatever order as just

Test for allowing/dismissing the appeal HKSAR v Ip Chin

- Will only depart from magistrate’s findings of Kei
fact/credibility if plainly wrong
- Case 1: Magisterial error (law or fact)
o Whether it is just for such an order to be made?
- Case 2: NO magisterial error or any grounds of appeal
succeeding
o Must still conduct rehearing to be satisfied that P
proved the case beyond reasonable doubt

Procedure in HCMA appeals

- Heard by 1 High Court judge MO s.118(e)
- Appellant first heard => respondent then heard => appellant MO s.118(1)(b)
might reply
- Appeal does not operate as stay of execution except for MO s.118(c)
compensation order
o Still need to serve imprisonment unless granted bail
MO s.118(1)(d)
- May reserve appeal or any point in appeal to CA full court

Disposal of HCMA appeals (i.e. the results of HCMA appeals)

MO s.119(1)(d)
- Confirm/reverse/vary magistrate’s decision
MO s.119(1)(e)
o Punishment more/less severe which magistrate could
have awarded MO s.119(1)(d)
- Direct case to be heard de novo by magistrate (restart trial) MO s.119(1)(d)
- Remit matter back to magistrate with judge’s opinion MO s.119(1)(g)
- Substitute conviction/sentence (with another offence) MO s.119(1)(d)

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- Make such order the judge thinks just

Bail pending HCMA appeals MO s.119(1)(a)

- Magistrate may release appellant if he is in custody pending
appeal MO s.122
- CFI judge may grant bail pending appeal

2.4 Appeal by P/D by way of case stated on point of law (MO s.105)

Eligibility of appeal by way of case stated MO s.105

- Both P and D may apply; or any person aggrieved
- Appeal against any conviction, order, determination or other
proceeding of magistrate
- On either ground:
o Erroneous in point of law
o In excess of jurisdiction

Procedure for case stated

- Within 14 clear days after magistrate determination MO s.105
o If self-review invoked, then 14 days only start when MO s.104(10)
self-review was determined
- Apply in writing to magistrate to state and sign a case setting MO s.105
forth for the opinion of judge:
o Facts and the grounds on which the determination
was made
o Grounds on which the proceeding is questioned
- Refusal by magistrate to state a case if application is merely
frivolous
o Magistrate shall on request of party sign and deliver
certificate of refusal on payment of sum of $2
o Shall not refuse to state a case where application is
made by SJ

Bail pending HCMA appeals

MO s.119(1)(a)
- Magistrate may release appellant if he is in custody pending
appeal
MO s.122
- CFI judge may grant bail pending appeal

2.5 Review of sentence (NOT conviction) by SJ to CA (CPO s.81A)

CPO s.81A
- Application by SJ to increase/correct unlawful sentence CPO s.81A(1)
- CANNOT review:
o Sentence fixed by law CPO s.81A(1)
o Any order made by CA BUT MC/DC/CFI CPO s.81A(1)
o Where D (respondent) has –
 Appealed against conviction CPO s.81C(1)(a)
 Applied magistrate self-review (MO s.104) CPO s.81C(1)(b)
 Applied for case stated (MO s.105) CPO s.81C(1)(c)
- Four grounds for review of sentence:
o Not authorised by law
o Wrong in principle
o Manifestly excessive
o Manifestly inadequate

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Procedure for sentence review under CPO s.81A

- Application for leave made in writing by SJ CPO s.81A(2)(a)
- Within 21 days of sentence or such time CA allows CPO s.81A(2)(c)
- Documents: CPO s.81A(2)(b)
o MC: statement of findings CPO s.81A(2A)(a)
o DC: reasons for verdict and for sentence CPO s.81A(2A)(b)
o HC: record of whole proceedings except evidence CPO s.81A(2A)(c)
given during trial

Possible orders on sentence review by CA under CPO s.81A

- Quash sentence and pass sentence (more/less severe) CPO s.81B(1)(a)
- Dismiss SJ’s application CPO s.81B(1)(b)

Bail pending appeal (CA)

- May be detained in custody until review CPO s.81A(3)
- May admit D to bail pending review CPO s.81A(4)

2.6 Judicial review to judge of CFI

Application for JR may be made to CFI => mandamus / prohibition / HCO s.21K
certiorari.
- Rare in criminal proceedings because JR not granted if other AG v Ma Chiu-
avenue of appeal available keung

Two possibilities
- Compel magistrate to state/amend the case by mandamus MO s.112
- Person sentenced by MC/DC to vary sentence on certiorari HCO s.25(1)
where lower courts had no power to pass sentence

3. Appeal of a magistrate’s order, determination, conviction and/or sentence in Juvenile Court

3.1 Where a child/young person is aggrieved by any conviction, order or JOO s.3A(4)
determination of a magistrate in JC, same provisions of appeal
against any conviction, order or determination of magistrate apply.

If child/young person convicted by court other than JC, and is JOO s.3F(2)(b)
remitted to JC for sentencing, appeal against finding of guilt shall be
made against the finding of that remitting court.

4. Appeal of an order, determination, conviction and/or sentence by DC judge / CFI judge +

jury
4.1 Generally

Defence appeals to CA
- Aggrieved by any conviction, order or determination of HCO s.13(3)(a)
DC/CFI judge by way of notice

Sections Period Form

Appeal agst CPO ss.82, Within 28 Notice of
conviction on 83Q; days from appeal to CA:
law only CAR r.35 conviction or Form VIII
sentence*

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Appeal agst CPO ss.82, Within 28 App for leave

conviction on 83Q, 83Y; days from from CA (1
fact / mixed CAR r.35; conviction or judge): Form
question (≤7 PD 4.2 sentence* XI
yrs)

Appeal agst CPO ss.82, Within 28 App for leave

conviction on 83Q; days from from full CA
fact / mixed CAR r.35 conviction or (3 judges):
question (>7 sentence* Form XI
yrs)
Appeal agst CPO ss.83I, Within 28 App for leave
sentence (≤7 83Q, 83Y; days from from CA (1
yrs) CAR r.36; sentence judge): Form
PD 4.2 XI
Appeal agst CPO ss.83I, Within 28 App for leave
sentence (>7 83Q; days from from CA (2
yrs) CAR r.36 sentence judges): Form
XI

*: If sentence passed more than 7 days after conviction/verdict, then CPO s.83Q(2)
notice of appeal may be given within 28 days from date which
sentence was passed.

Prosecution appeals to CA: 4 + 1 options

- By way of case stated from DC to CA (DCO s.84) HCO s.13(3)(d)
- Apply to CA on point of law (CPO s.81D) HCO s.13(3)(c)(ii)
- Apply to CA against order of discharge or to quash
indictment (CPO ss.81E, 81F)
- Apply to CA for review of sentence (CPO s.81A) HCO s.13(3)(c)(i)
- [Reserved question of law to CA (CPO s.81)] HCO s.13(3)(b)

4.2 Appeal by D on conviction and/or sentence to CA

Can appeal against conviction, sentence, order or determination

against DC/CFI.

APPEAL AGAINST CONVICTION:

Question of law vs. Question of fact vs. Mixed question

- Question of law alone => no leave required CPO s.82(2)(a)
o Notice filed within 28 days from conviction or
verdict // if sentence passed more than 7 days after
conviction, then 28 days from sentence
- Question of fact or mixed question => leave required CPO s.82(2)(b)
o Unless trial judge grants certificate that case is fit for
appeal

If sentence imposed on D is 7 years or less

- On question of fact or mixed question of fact and law
- Obtain leave from CA by applying to single judge of CA PD 4.2 para.6A(5);
o Single judge does NOT have power to determine CPO s.83Y(1), (2)
substantive appeal
o If leave dismissed by single JA, then D can renew CPO s.83Y(3)

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leave application to full CA

 May be ordered for loss of time (CPO HKSAR v Mchabu
s.83W) [see PD SL4 para.11] Charles Sunday
 Single JA who refused leave may still sit as HKSAR v Md
member of panel Emran Hossain

If sentence imposed on D is more than 7 years

- On question of fact or mixed question of fact and law
- Obtain leave from CA by applying to full CA (in practice, if
D wins, the court may fuse the leave hearing with
substantive hearing)

Initiating an appeal to CA
- Filing notice of appeal (question of law) or notice of CPO s.83Q(1)
application for leave to appeal (question of fact or mixed)
o In practice, file leave application anyway in case it is
ruled as a mixed question
- Within 28 days of conviction if appealing conviction CPO s.83Q(2), CAR
o If sentence passed 7 days after conviction, then r.35
within 28 days of sentence
- Within 28 days of sentence if appealing sentence CPO s.s.83Q(2)

Initial grounds of appeal

- Trial counsel should advise on ‘reasonable’ grounds of PD 4.2 para.4
appeal
- Should be able to formulate initial grounds immediately PD 4.2 para.4
after conclusion of case
- Duty to ensure grounds are (i) arguable, (ii) reasonable that PD 4.2 para.5
they afford real chance of success, (iii) supportable by oral
argument and particularised and (iv) settled with care and
accuracy

Perfected grounds of appeal

- Prior to hearing for leave to appeal
- Should not be settled unless they are properly arguable PD 4.2 para.7(1)
- Should be concise PD 4.2 para.7(6)
- With sufficient precision to enable court to identify issues PD 4.2 para.7(3)
readily and clearly
- Should not be argumentative (contain submissions) PD 4.2 para.7(7)

[Note: requirements for CA appeal skeleton argument – 15 pages

with 14 point font size; 1.5 spacing with one inch margins; cannot
advance grounds not contained in PGA]

Test for granting leave

- Whether the case is reasonably arguable

After leave is granted

- No need to file new notice of appeal as notice of application CAR r.38
for leave is treated as notice of appeal

Grounds for allowing appeal against conviction

- Three grounds: CPO s.83(1)
o Conviction was unsafe or unsatisfactory CPO s.83(1)(a)
CPO s.83(1)(b)

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o Trial judge made wrong decision on question of law CPO s.83(1)(c)

o Material irregularity at trial (e.g. witness gave
opinion evidence / D excluded from trial)
- Burden on the appellant (D)

Power of the CA in appeal CPO s.83(2), (3)

- Quash the conviction [i.e. acquittal except re-trial ordered] CPO s.83(1)
- Apply proviso under CPO s.83(1): ground(s) for allowing
appeal made out, but dismiss appeal if there was no
miscarriage of justice [usually technical matter] Kulemesin v
o ‘Whether a reasonable jury, properly instructed, HKSAR
would, on the evidence, without doubt, convict or
would inevitably come to the same conclusion?’ CPO s.83A,
- Substitute conviction Hau Tung Ying v
o Where it was open on indictment the jury could have HKSAR
found him guilty of some other offence
 Usually of lesser severity
o AND appears to court that jury MUST have been
satisfied of facts CPO s.83E
- Order a re-trial CPO s.83E(1)
o Interest of justice so requires CPO s.83E(2)
o Can be re-trial of same offence OR other offences
that he could have been convicted on indictment OR
HKSAR v Wu Wing
an alternative count
Kit (No 2),
o Factors to be considered whether to order re-trial:
R v Holgate (No 2)
 D already tried once
 Seriousness of offence
 Reasons for success (e.g. technicality)
 Time lapse
 Length of sentence
 Availability of evidence
 Expense and length of time of retrial
 Ordeal for D of retrial
 Public perception of guilty not escaping CPO s.83F(1)
justice CPO s.83F(2)
o Re-trial on fresh indictment
o Bail pending re-trial
 If person is retried under CPO s.83E, CA
may grant bail to D
 Since conviction quashed, presumption of
innocence applies and principles in relation
to bail pending trial apply

APPEAL AGAINST SENTENCE CPO s.83G

CPO s.83G CPO s.80
Person convicted on indictment may appeal to CA against any
sentence.
- Include any order dealing with offender
CPO s.83H
CPO s.83H
Appeal against sentence in other cases dealt with at CFI (e.g. where
offender committed by magistrate for sentence; not tried in CFI)

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CPO s.83I(1), CAR

Application for leave r.36
- Application for leave within 28 days from the day on which e.g. CPO s.83Q
sentence was passed
- If sentence is not more than 7 years, then PD 4.2 would be
applied (i.e. single judge leave procedure)
- Leave procedure – i.e. initiation of appeal, initial grounds,
perfected grounds, test for grant of leave is the same as the
above for appeal against conviction
- Possible grounds of appeal:
o Not authorised by law
o Wrong in principle
o Manifestly excessive

Powers on sentence appeals CPO s.83I(3)(a)

- Quash sentence CPO s.83I(3)(b)
- Replace sentence or make such order as it thinks fit (whether
more or less severe) and as the court below had power to
pass CPO ss.83I(3)(b),
- Make an order for loss of time 83W

4.3 Appeal/reference by SJ on point of law [2 routes]

Appeal by way of case stated from DC (DCO s.84)

Eligibility and procedure
- Appeal by SJ against verdict for acquittal DCO s.84
- In relation to matters of law only DCO s.84
- Within 7 clear days after trial DCO s.84(a)
- Apply by writing to judge to state a case setting forth the DCO s.84(a)
facts, grounds on which the verdict arrived, and grounds
questioned for opinion of CA
Powers of CA DCO s.84(c)
- Dismiss the appeal for insufficient grounds
- Reverse verdict and order trial to be resumed/retried
- Directly find D guilty and enter conviction as may be passed
by trial judge (DC judge)

Reference of question of law to CA wrt. DC/CFI (CPO s.81D)

- Tried on indictment and acquitted by DC/CFI CPO s.81D(1)
- SJ refer a question of law for opinion of CA CPO s.81D(1)
- Acquitted D not required to attend CPO s.81D(2)(b)
- Reference shall NOT affect acquittal or trial CPO s.81D(4)

4.4 Other appeals by SJ

Appeal to CA following discharge (CPO s.81E) CPO s.81E

- In HC trial, judge may discharge D after committal because CPO s.16
of insufficient evidence to establish prima facie case
- Grounds of appeal: CPO s.81E(2)
o Involving a question of law
o Sufficient evidence to establish prima facie case
- Power: may allow appeal and quash acquittal and order him CPO s.81E(3)

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to be tried

Appeal against quashing indictment (CPO s.81F)

- Where DC/CFI quashed indictment (e.g. on grounds of CPO s.81F(1)
abuse/irregularity)
- Grounds of appeal: grounds involving question of law CPO s.81F(2)
- Power: may allow the appeal, set aside the quashing order CPO s.81F(3)
and order the accused to be tried

4.5 Review of sentence by SJ (CPO s.81A)

CPO s.81A
- Application by SJ to increase/correct unlawful sentence CPO s.81A(1)
- CANNOT review:
o Sentence fixed by law CPO s.81A(1)
o Any order made by CA BUT MC/DC/CFI CPO s.81A(1)
o Where D (respondent) has –
 Appealed against conviction CPO s.81C(1)(a)
 Applied magistrate self-review (MO s.104) CPO s.81C(1)(b)
 Applied for case stated (MO s.105) CPO s.81C(1)(c)
- Four grounds for review of sentence:
o Not authorised by law
o Wrong in principle
o Manifestly excessive
o Manifestly inadequate

Procedure for sentence review under CPO s.81A

CPO s.81A(2)(a)
- Application for leave made in writing by SJ
CPO s.81A(2)(c)
- Within 21 days of sentence or such time CA allows
CPO s.81A(2)(b)
- Documents:
CPO s.81A(2A)(a)
o MC: statement of findings
CPO s.81A(2A)(b)
o DC: reasons for verdict and for sentence CPO s.81A(2A)(c)
o HC: record of whole proceedings except evidence
given during trial

Possible orders on sentence review by CA under CPO s.81A CPO s.81B(1)(a)

- Quash sentence and pass sentence (more/less severe) CPO s.81B(1)(b)
- Dismiss SJ’s application

Bail pending appeal CPO s.81A(3)

- May be detained in custody until review CPO s.81A(4)
- May admit D to bail pending review

4.6 Reserve question of law to CA (CPO s.81)

CPO s.81
- On application by P/D or by DC/CFI judge’s own motion CPO s.81(2)
- Reserve question for consideration of any question of law CPO s.81(1)
- Time for reservation of question of law: after conviction or
at any time during trial
- Powers of the trial judge: CPO s.81(3)
o Postpone judgment
o Commit person convicted to person / admit him to
bail

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- Powers of the CA: CPO s.81(4)

o Affirm/quash conviction or order new trial CPO s.81(4)(a)
 Proviso: may affirm conviction despite
favourable ruling to D if there is no
miscarriage of justice
o Make such orders as necessary CPO s.81(4)(b)

5. Bail pending appeal

5.1 General principles

Presumption of innocence is no longer applicable.

After conviction, bail would be an exception rather than the rule. HKSAR v Lau Man
Kin
Two grounds for application HKSAR v Lau Man
- Time ground: there is a risk that by the time of appeal, the Kin; HKSAR v Ma
sentence is completed or substantial part served Kwong Tak
o Reasonably arguable
o Unless there is no realistic prospect of success HKSAR v Leung
- Merits ground: prima facie the appeal is likely to be Kwok Hung
successful

These principles are applicable to all levels of courts.

5.2 By magistrate pending self-review under MO s.104 or appeal

under MO ss.105/113 (self-review, appeal against
conviction/sentence, appeal by case stated)

Bail pending appeal

Magistrate may admit D to appeal immediately after sentence on MO s.119(1)
undertaking that appeal would be filed on the same day by serving
Forms 101 and/or 102.

5.3 By CFI judge pending appeal under MO ss.105/113

Where magistrate refuses to grant bail or HCMA proceedings MO s.122

already initiated, CFI judge may grant bail.
- Must lodge notice of appeal in accordance with MO
ss.105/113
- File notice of bail application

5.4 By CA

Where appellant convicted in DC/CFI, DC/CFI judge has not power CPO s.83R
to grant bail pending appeal after conviction/sentence => CA for bail
pending appeal.

D/Appellant shall file summons and affirmation to HC. RHC o.1 r.2, o.32 r.1

D/Appellant shall be personally present at hearing. CAR r.49

If Prosecution applies for review of sentence (CPO s.81A), CA has CPO s.81A(3), (4)
power to detain D or grant bail.

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If person is retried under CPO s.83E, CA may grant bail to D. CPO s.83F(2)
- Since conviction quashed, presumption of innocence applies
and principles in relation to bail pending trial apply

5.5 Bail pending appeal to CFA

The court may grant bail to persons who applied for appealing or HKCFAO s.34(1)
applying for leave to appeal or pending determination of appeal.

If the application of bail was refused, shall NOT entitled to HKCFAO s.34(3)
second/fresh application, UNLESS there is a material change in the
relevant circumstances.

6. Matters during appeal hearing

6.1 Fresh evidence on appeal

During an appeal, CFI, CA and CFA have power to admit fresh

evidence.

CFI (MO s.118(1) – appeal by way of rehearing)

- Appeal by way of rehearing of evidence at trial Chou Shih Bin v
supplemented by further evidence as court may admit HKSAR
o Depositions before magistrate treated as admissible MO s.118(1)(a)
as evidence of evidence given
o Can receive additional fresh evidence MO s.118(1)(b)
- May make whatever order as just

CA (CPO s.83V)
- Receive fresh evidence (exhibits/documents/witnesses)
- Provided that the following are satisfied:
o Necessary/expedient in the interests of justice CPO s.83V(1)
o Would afford a ground of appeal CPO s.83V(2)
o Evidence is likely to be credible and would have CPO s.83V(2)(a)
been admissible at trial
 Witness competent and compellable CPO s.83V(1)(c), (3)
o Relevant to an issue which subject of appeal CPO s.83V(2)(a)
o Reasonable explanation for failure to adduce at trial CPO s.83V(2)(b)

CFA
Mahabobuy Rahman
- No express power provided but HKCFAO s.17(2) provides
v HKSAR
court with the powers of the court from which the appeal lies
- Follow the rules in CPO s.83V

6.2 Order for re-trial

CA has power to order retrial when allowing appeal agst conviction CPO s.83E
- Interest of justice so requires CPO s.83E(1)
- Can be re-trial of same offence OR other offences that he CPO s.83E(2)
could have been convicted on indictment OR an alternative
count
- Factors to be considered whether to order re-trial: HKSAR v Wu Wing
o D already tried once Kit (No 2),

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o Seriousness of offence R v Holgate (No 2)

o Reasons for success (e.g. technicality)
o Time lapse
o Length of sentence
o Availability of evidence
o Expense and length of time of retrial
o Ordeal for D of retrial
o Public perception of guilty not escaping justice
CPO s.83F(1)
- Re-trial on fresh indictment CPO s.83F(2)
- Bail pending re-trial
o If person is retried under CPO s.83E, CA may grant
bail to D
o Since conviction quashed, presumption of innocence
applies and principles in relation to bail pending trial
apply

CFA has power to order retrial under HKCFAO s.17(2)

6.3 Order for loss of time

All or part of time already spent in custody by D/appellant pending

determination of appeal would not be reckoned as part of sentence
served.
- Deter unmeritorious applications in appeal

CPO s.83W
- Normal rule is that time spent in custody pending CPO s.83W(1)
determination of appeal is reckoned as part of the sentence
- Shall NOT order for loss of time where: CPO s.83W(2)
o Leave to appeal has been granted
o Trial judge granted CPO s.82 certificate (case fit for
appeal)
o Case referred to it by CE under CPO s.83P

Applicable scenarios
- Exercisable to application for appeal or for leave to appeal HKSAR v Wong Lin
out of time (for extension of time) Hung
- Where applicant tries to abandon appeal but left it too late HKSAR v Tam Tak
Keung Sammy
Test for the order for loss of time
- Whether there is a total lack of merit in the application PD SL4, Chau Ching
- Relevant factors include: Kay v HKSAR
o Whether acting under legal advice (not absolute bar
to loss of time)
o Conduct of applicant
o Seriousness of matter
o Importance of appeal to applicant
o Length of sentence
o Any other peculiar/extraneous circumstances

Applicable period for loss of time Hau Kin v HKSAR

- Maximum: period between filing of application for leave to
appeal and determination of appeal

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LLAW3099 Criminal Procedure

7. Appeal of HCMA/CACC judgment to CFA

7.1 Generally

D/P may lodge appeal to CFA of any appeal decision of CACC HKCFAO s.31
decision or any HCMA decisions [where no appeal lies to CA].
- Against conviction and/or sentence
- Leave is required and intermediate appellate court X grant HKCFAO s.32
- Power of CFA: confirm, reverse or vary decision; remit the HKCFAO s.17(1)
matter with opinion; make such other order as it thinks fit

Appeal from Magistrate trial Appeal from DC/CFI trial

Appeal to CFI (HCMA)
- May reserve appeal to
CA
Appeal to CFA
- Only CFA grants leave
Appeal to CA (CACC)
- Need leave if appealing
on point of fact
Appeal to CFA
- Only CFA grants leave

Bail pending CFA leave

- CA cannot grant bail pending CFA leave
- Application be made to CFA before single judge of CFA

Uncontested appeals
- The question as to whether to grant leave lies with the CFA HKSAR v Shum
- Parties’ agreement does not bind the court Wan Foon
- CFA has discretion to dispense the need of oral hearing
- If respondent plans to concede, should inform Registrar by
both parties jointly as soon as practicable after filing Form B
and consent summons submitted for approval

7.2 Leave to appeal

Leave to appeal to CFA is required and would only be granted on two HKCFAO s.32
grounds:
- Point of law of great and general importance (POL ground)
- Substantial and grave injustice (SGI ground)
o Residual safeguard for cases where there is real So Yiu Fung v
danger of something so seriously wrong that justice HKSAR
demands an enquiry by way of final criminal appeal
despite the lack of any POL

Three possible scenarios: POL only; SGI only; or both POL and SGI.

Procedure for application for leave to appeal Zeng Liang Xin v

- POL ground only HKSAR
o Apply to CFI/CA for certification of point of law of
great and general importance => apply for leave from
CFA
o CONCURRENTLY, apply to CFA for both
certification and leave
- SGI ground only
o Apply to CFA directly for leave; X certificate
- Both POL and SGI grounds

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LLAW3099 Criminal Procedure

o Apply to CFI/CA for certification of point of law of

great and general importance => apply for leave from
CFA on both grounds
o CONCURRENTLY, apply to CFA for both
certification, and leave for both grounds
- If certification declined by lower court, rely on Form B
- If certification granted by lower court, apply to amend Form
B to take into account of certification

Application Section Period Form‡

POL only PD 2.2, 4.3 Immediately Notice of
after judgment Motion to CFI
delivered / / CA
within 7 days
of hand down
HKCFAO Within 28 Form B to
s.33, days from date CFA Appeal
HKCFAR of decision Com*
rr.4-6
SGI only HKCFAO Within 28 Form B to
s.33, days from date CFA Appeal
HKCFAR of decision Com*
rr.4-6
Both POL and PD 2.2, 4.3 Immediately Notice of
SGI after judgment Motion to CFI
delivered / / CA on POL
within 7 days only
of hand down
HKCFAO Within 28 Form B to
s.33, days from date CFA Appeal
HKCFAR of decision Com* on both
rr.4-6 POL and SGI
*: CFA Appeal Committee consists of 3 CFA PJs (can be NPJ).
Decision of CFA App Com is final and not subject to appeal. HKCFAO s.18(3)

‡: The filing and service requirements provided in HKCFAR rr.5-6. Notes pp.682-684

Test for leave

- POL ground
o Great and general importance
Lee Kin Pong v
o Reasonably arguable
HKSAR
- SGI ground Van Weerdenberg v
o Serious departure from accepted norms: (1) identify
HKSAR
the accepted norms and (2) identify the departure
o Reasonable arguable but hurdle is high

The Rule 7 procedure HKCFAR r.7

Once leave application is filed and prior to leave hearing before CFA
Appeal Committee, Registrar may issue summons calling upon
appellant to show cause.
- Registrar considers on own motion / applied by Respondent
- Application discloses no reasonable grounds of appeal
- Issue summons to call Appellant to show case in front of

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LLAW3099 Criminal Procedure

CFA Appeal Committee

- CFA App Com will decide whether to dismiss on paper /
leave hearing date be set

Hearing of leave application

- Only document necessary for determination of leave should
be placed PD 2.4
- Requirements on skeleton and filing and authorities: 5,000
words, 14 point, etc.
7.3 Substantive appeal

Where leave is granted by CFA App Com, appellant must file Notice HKCFAR r.14
of Appeal with Form C within 7 days after day the order granting
final leave to appeal.
- Within 7 days of filing, serve a copy to other parties HKCFAR r.16(1)
- Within 7 days after service, file affidavit of service HKCFAR r.16(2)

A distinct FACC number will be allocated. HKCFAR r.15(1)

If Respondent wishes to oppose appeal in appearance, then must file HKCFAR r.20
Form E Notice within 14 days of service of Appellant’s Form C.

Before a date for hearing is set, parties must file their Case
(submission) and prepare the Record (bundle) in accordance with
HKCFAR rr.24-40.
- Not less than 21 days before hearing of substantive appeal, HKCFAR r.42
each party shall file list of authorities
- Not more than 2 counsel on each side without leave HKCFAR r.43

Power of CFA provided in HKCFAO s.17. HKCFAO s.17

Rules on delivering/handing down of judgment provided in Notes p.689

HKCFAR r.45.

Exceptional power to reopen the trial

- CFA has discretionary power to re-open an appeal where Hall v HKSAR
judgment was obtained by fraud
- Has an implied power exceptionally to order an appeal to be
re-opened where justice so demands, such power being
reasonably required for the effective exercise of the judicial
power granted by the Basic Law

Exceptional power to allow appeal by dead appellant

- Once a party invoked the Court’s jurisdiction under s.31 by HKSAR v Cheng
making an application for leave to appeal under s.33, the Chee Tock, corrected
Court retained jurisdiction to hear a final criminal appeal Hin Lin Yee v
notwithstanding the subsequent death of a party and had HKSAR
a discretion whether to do so or not.
- This conclusion was reached as a matter of construction of
the relevant statutory provisions in the Ordinance and not by
reference to the constitutional arrangements regarding access
to the courts.

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