Barrister Mark Sutherland of Counsel in HCMA 357 of 2012 (A Public Judgment of Deputy High Court Judge Wright dated 8 March 2013)

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HCMA 357/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 357 OF 2012

(ON APPEAL FROM FLCC 149/2012)

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BETWEEN

	HKSAR	Respondent
and
	SUBASINGHE MUDIYANESELAGE NANDIKA PIYAL	Appellant

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Before: Deputy High Court Judge Wright in Court

Dates of Hearing and Decision: 21 February and 6 March 2013

Date of Handing Down Reasons for Decision: 8 March 2013

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REASONS FOR DECISION

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1. The applicant was convicted after trial by a Deputy Magistrate on 27 April 2012 on a single, charge of theft contrary to s 9 of the Theft Ordinance, Cap 221. He appealed both conviction and sentence. The facts appear clearly from the judgment which I handed down in this matter on the 29 January 2013.

2. None of the 15 grounds of appeal advanced against conviction was possessed of any merit. That appeal was dismissed and the conviction confirmed.

3. There were 5 grounds of appeal advanced against sentence. As sentence was at large before me, I decided to take a course different to that adopted by the magistrate: of course that does not imply that the magistrate's approach was wrong, simply that I took a different view as to disposal of this matter.

4. Barrister Mark Sutherland of Counsel appeared for the applicant as his lawyer at trial and again on the appeal. He then made application for a certificate for leave to refer a total of 14 questions, 13 in regard to conviction and one in regard to sentence, to the Court of Final Appeal pursuant to the provisions of s 32(2) of the Court of Final Appeal Ordinance, Cap 484, asserting that each of those questions constitutes "... a point of law of great and general importance... involved in the decision..." on appeal.

5. This application was listed for a 30 minute hearing on 21 February 2013 at 09.30. When it did commence, belatedly, counsel sought to hand in a bundle of authorities which had not previously been served on the respondent or filed in court. A jury trial had been set to resume at 10.00 that morning. It was perfectly plain, despite counsel’s expressed belief to the contrary that it would finish in time, that the matter would not permit of the timeous resumption of the jury trial. It was accordingly adjourned to today with an order that any submissions and authorities be filed and served on or before 1 March.

6. The first seven of the proposed questions related to a finding by the court, and the evidential route by which that was achieved, as to whether or not the property had been abandoned and the state of the accused’s mind in that regard. The appellant elected, as is his right, not to testify. It was self-evident that findings of that nature will be fact-sensitive within the context of a particular case. Any finding depended upon inferences to be drawn from the proven evidence. The approach to be followed by a court in such an exercise has long since been settled.

7. Proposed questions 8 to 12 demonstrated a complete misapprehension as the effect of the judgment. No adverse inference was drawn as a result of the applicant’s silence. It cannot be. The magistrate was aware of that. I was aware of that. It is well settled. It is, however, not only permissible but incumbent on the court to look at the entire circumstances surrounding a series of events in arriving at its decision. Again, these were purely factual matters.

8. Proposed question 13 was a further question of fact.

9. The single question relating to the sentence now imposed upon the applicant demonstrated a lack of appreciation of the terms and effect of the order. No order for payment of any sum has been made. The applicant simply has entered into a recognisance which he might be called upon to pay if he commits any further criminal offence involving dishonesty or if he fails to appear for sentence if called upon to do so, within a two-year period. Obviously, his liability and, consequently, ability to pay would become relevant if he breaches the terms of his recognisance.

10. None of the questions was a question of law; none was of great importance; none was of general importance; more particularly none was of great and general importance.

11. The application was consequently dismissed.

12.Presenting entirely unmeritorious appeals or applications in this fashion is unacceptable. It does nothing to further the interests of an accused person; the interests of justice; the interests of the courts; the interests of the community as a whole. That these proceedings have been funded by the general public via either the Duty Lawyer Scheme at trial or the Department of Legal Aid in respect of the appeal and of this application is a matter for real concern. I direct that a copy of this decision be referred to the Director of Legal Aid.

(A R Wright) Deputy High Court Judge

Ms WONG Kam Hing, SADPP of Department of Justice, for the Respondent

Barrister Mark Sutherland of Counsel and Lawyer, instructed by Department of Legal Aid, for the Appellant