Cheung v The Queen S137/1997 [1999] HCATrans 426 (15 October 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S137 of 1997

B e t w e e n -

YING-LUN CHEUNG also known as GARY CHEUNG

Applicant

and

THE QUEEN

Respondent

Application to vacate hearing date

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 OCTOBER 1999, AT 2.13 PM

Copyright in the High Court of Australia

MR M.J. IERACE: If your Honour please, I appear for the applicant. (instructed by Stephen Hodges)

MR J.V. AGIUS, SC: May it please the Court, I appear for the Crown.. (instructed by the Commonwealth Director of Public Prosecutions)

HIS HONOUR: Yes, Mr Ierace.

MR IERACE: Your Honour, in relation to the summons which has been filed in this matter setting out the orders sought, I rely upon the following affidavits. The affidavit of Ying-Lun Cheung sworn on 1 October 1999 and filed on 11 October.

HIS HONOUR: Just let me read that affidavit to myself, Mr Ierace. Yes, I have read that affidavit.

MR IERACE: Your Honour, the next affidavit is that of Stephen Hodges, solicitor. It was sworn on 8 October 1999 and also filed on 11 October.

HIS HONOUR: Yes.

MR IERACE: That is the evidence of the applicant, your Honour.

HIS HONOUR: Yes. Mr Agius, do you have any evidence?

MR AGIUS: Yes, your Honour. I rely upon the affidavit of Joseph John
Azize affirmed and filed on 26 May 1999.

HIS HONOUR: Just let me read that to myself. Yes, I have read that.

MR AGIUS: That is the material upon which I rely, your Honour.

HIS HONOUR: Yes, Mr Ierace.

MR IERACE: Your Honour, this application essentially derives from some circumstances that were set out in the earlier application before his Honour Justice Kirby. Your Honour, Justice Kirby's judgment and orders are recorded at (1999) 73 ALJR 1093. I have a copy of that, your Honour.

HIS HONOUR: Thank you.

MR IERACE: Your Honour, essentially that application was brought to accommodate a difficulty that the applicant had in terms of his representation. He had been assisted by some friends in Hong Kong who dated back to his school days and who had passed around the hat to raise sufficient funds for the applicant to prosecute his appeal. To that end, Mr Lloyd, SC, then and now based in Hong Kong, accepted the brief. Mr Lloyd was unavailable on a date which was set down by the Registrar for the appeal and thus the application was brought to vacate that date. That application was successful.

Your Honour will note from the orders, which appear at the conclusion of the judgment, included, secondly, that the application be re-listed "on a date in November or December 1999". It is apparent from the terms of the judgment that the reason for that was that the sentence appeal before the Court of Criminal Appeal was set down for 9 September 1999 and his Honour observed that it had been said that if that appeal was unsuccessful, it may also lead to an application to seek special leave before this Court. Thus the date appears to have been nominated to accommodate that possible course of action.

HIS HONOUR: Nominated by whom?

MR IERACE: By his Honour, in the sense that his Honour has indicated that the fresh date should be in November or December of 1999, that being after the date for hearing of the sentence appeal before the Court of Criminal Appeal.

Your Honour, since that application there have been two further relevant developments. The first is that Mr Lloyd is now unable to appear for the applicant. That is because, as is apparent from the letter attached to the affidavit of the applicant, Mr Lloyd was relying upon retaining a brief in another matter that would have covered his expenses in travelling to Australia at the relevant time. That matter fell through and thus he is not available for this matter. Accordingly, the applicant has some difficulty in securing representation on 15 November. The second consideration - - -

HIS HONOUR: Let us just stick with that one for the moment. That is one of the grounds of the application for the adjournment, is it, that your client has difficulty in securing representation for 15 November?

MR IERACE: It is perhaps not strictly a ground, but it is a relevant feature of the background circumstances. I am instructed that at this stage there is no one briefed to appear for the applicant - - -

HIS HONOUR: The Court cannot make anybody brief somebody, but the question is why the Court should grant an adjournment by reason of the circumstance that somebody has not been briefed. We are dealing with something - a date about a month ahead.

MR IERACE: Yes. Your Honour, it is a combination of that factor and the other.

HIS HONOUR: I understand that, but let us pursue that factor for the moment. It was apparently possible to brief counsel to argue the application for the adjournment here today.

MR IERACE: That is so, your Honour.

HIS HONOUR: Why would it be any more difficult to get counsel to argue the application for special leave?

MR IERACE: I am instructed that the funds which are presently available do not extend to securing counsel for the application on 15 November.

HIS HONOUR: But they extended to securing counsel for the application today?

MR IERACE: Yes.

HIS HONOUR: Well, somebody has made a choice to spend the money on applying for an adjournment rather than arguing the application.

MR IERACE: There is, your Honour, the obvious distinction in the complexity of the two matters between today and 15 November. I understand that the trial brief comprises - the transcript comprises some 1,200 pages. I note that the judgment handed down by the Court of Criminal Appeal was lengthy and, quite clearly, there is a high degree of complexity involved in the application for special leave. Your Honour, that would probably account for the reason that the applicant can secure counsel for this relatively simply adjournment application as opposed to the application for special leave.

Your Honour, the situation in relation to the applicant's source of funds remains the same, that is that he is entirely dependent upon the goodwill of school friends in Hong Kong who continue, from time to time, to marshal funds to assist him. For that reason, your Honour, I am not instructed to rule out the possibility of there being representation, but simply at this stage there are not sufficient funds for that to occur.

The second reason - or relevant factor - is that, unexpectedly perhaps, the judgment from the sentence appeal to the Court of Criminal Appeal has not been handed down at this stage. The court reserved on 9 September and thus far it has not been handed down. Inquiries made by my instructing solicitor suggest that it will not be handed down for at least another 10 days or so. Your Honour, that being the case, the circumstance that was expected by his Honour Justice Kirby at the time that the orders were made in May has not come to pass.

HIS HONOUR: Where do we find Justice Kirby dealing with that expectation?

MR IERACE: His Honour referred on page 1094, at paragraph 9, to the date of the appeal against sentence in the Court of Criminal Appeal about halfway through that paragraph. His Honour then noted that Mr Lloyd in his affidavit observed that if that appeal were successful, it may well be that the application for special leave would not be pursued. In the last three sentences of that paragraph his Honour observed that:

If the application for leave to appeal against sentence were dismissed, Mr Cheung would seek to consolidate a further application for special leave to appeal in respect of his sentence. This Court could then dispose of all matters in the one hearing. It would not be troubled, as it otherwise might be, twice.

There would appear, your Honour, to be no other reason as to why his Honour framed his orders as he did as to the re-listing of the application, in terms of which months.

Your Honour, given the financial situation of the applicant, clearly if he does receive advice from his counsel that there is merit in an application for special leave in respect of his sentence, his position would be assisted greatly if both applications could be made at the same time, that is financially. They are my submissions, your Honour.

HIS HONOUR: Thank you, Mr Ierace. Yes, Mr Agius.

MR AGIUS: Your Honour, one of the principal reasons upon which Justice Kirby made the orders he did was to provide for what he called the proper disposition of the matter. He said that that could be achieved and Mr Cheung could have the experienced counsel of his choice and that the involvement of fresh counsel would "leave Mr Cheung with a sense of grievance if his application or applications were to be dismissed". Your Honour, it has come to pass in any event that the counsel of Mr Cheung's choice is not going to appear. One of the principal reasons for the orders made by his Honour has fallen away. There is, in fact, no certainty that there will be an application for leave to appeal in respect of the result of the Court of Criminal Appeal matter and that will involve, if it does come to pass, considerations of the law applicable to sentence, not necessarily applicable and, indeed, one would not think applicable, on the questions raised by the special leave application going to conviction. The two matters are separate. Whereas there might be some overlap, the overlap would be quite small.

This is a very old matter. There is no certainty that any counsel will be able to be retained - or will be retained - even if the November date is vacated. The only way to ensure that this matter comes to fruition is to hold on to the date because it is the only way in which there can be any certainty or any pressure that counsel will be retained. And that is why we oppose the application.

HIS HONOUR: Were counsel retained to argue the appeal before the Court of Criminal Appeal, the sentence appeal?

MR AGIUS: Yes.

HIS HONOUR: It seems to me that the only argument of any merit in support of the application is that if it should be that the Court of Criminal Appeal has not given its decision in relation to the sentencing matter before 19 November, then we may well be confronted with two applications for special leave to appeal; one, the application for leave to appeal against conviction, which would be dealt with on 19 November, and one, the application for leave to appeal against sentence which would be dealt with on some future date. That has two consequences: first of all, it involves the Court in hearing two applications and presumably giving two lots of 20 minutes for the arguments to be advanced on behalf of the applicant, and it involves the applicant in two lots of expenditure in pursuing the application or applications. That is the argument against you, as I understand it. I am not very interested in the arguments concerning the history of retaining counsel. Who knows what will happen in relation to that.

MR AGIUS: We do not know, your Honour, that there will be an application for leave to appeal against sentence. We cannot second guess what the judgment may be.

HIS HONOUR: No, quite.

MR AGIUS: In any event, these are applications for leave to appeal and not substantial appeals themselves. Although there will be some duplication, it will be minimal. But if this order is vacated, then this matter, which already has a history dating back 10 years - although not all of that within this jurisdiction - there is no certainty it will not run on ad infinitum. It seems Mr Cheung was aware of Mr Lloyd's position as at 24 July.

HIS HONOUR: I said I am not really interested in the arguments about the identify of counsel who have been retained, Mr Agius. You need not trouble yourself about that.

MR AGIUS: Your Honour, there is no doubt that against me is the in terrorem proposition that there may be an application for leave to appeal in respect of the appeal - or the present application for leave to appeal against sentence before the Court of Criminal Appeal but one aspect is that leave may not be granted by the Court of Criminal Appeal in that matter, given that the application for leave to appeal went on so late. It was not put on until many years after the conviction appeal was dealt with. In a sense, this Court is boxing with shadows, not knowing what the position will be in relation to the sentence appeal. Those are my submissions.

HIS HONOUR: Yes, thank you, Mr Agius.

Two grounds are advanced in support of this application to have the matter, an application for special leave to appeal from a decision of the Court of Criminal Appeal of New South Wales, which has been listed for hearing on 19 November, taken out of the list for that date. The application is opposed by senior counsel for the Crown who submits that the applicant should be held to the date of 19 November so that the matter, which has a long history, can be brought to finality.

The first ground concerns the availability of counsel. Without going into the detail of the history of the matter as disclosed in the affidavits, it suffices for me to say that this ground is utterly unconvincing.

The second ground, however, is of more substance, and involves considerations related to the efficient disposition of the business of the Court as well as to the position of the applicant. The matter that is listed for 19 November is an application for special leave to appeal against a decision of the Court of Criminal Appeal of New South Wales dismissing an appeal against conviction. That application has been in the list for a long time and has already been adjourned once on the application of the applicant; see Cheung v The Queen 73 ALJR 1093.

Additionally, there was a separate appeal or application for leave to appeal made to the Court of Criminal Appeal in relation to the sentence that *was imposed upon the applicant. The reasons why that matter came separately before the Court of Criminal Appeal are adverted to in the reasons for judgment of Justice Kirby in Cheung v The Queen.

The matter relating to sentence was argued in the Court of Criminal Appeal last month and the court reserved its decision. It is not known when that decision is given. It is possible that the decision will not be given before 19 November. Depending upon the outcome of the sentencing matter in respect of which the Court of Criminal Appeal has reserved judgment, there may be brought to this Court, in addition, for the application for special leave to appeal in relation to the conviction, a further application for special leave to appeal in relation to the sentence.

It is not in the interests of the efficient disposition by this Court of its business that it should have to deal separately and on two different occasions with those respective applications, should they eventuate. Further, it may impose unnecessary financial hardship upon the applicant to have to make two separate applications of that kind.

In those circumstances, and solely upon the ground of the pending decision of the Court of Criminal Appeal in relation to the sentence matter, I am prepared to make the order sought on behalf of the applicant. The hearing date of the special leave application on 19 November is vacated.

I direct the Deputy Registrar not to re-list the application for special leave to appeal or any application for special leave to appeal in relation to the sentencing matter on any future occasion unless and until she is satisfied that the legal representatives of the applicant or the applicant himself, if not represented, will be ready and willing to proceed on any date further fixed.

MR IERACE: If your Honour pleases.

MR AGIUS: Your Honour, in relation to that date, would your Honour be prepared to preserve the priority that was ordered by Justice Kirby, that being priority for the convenience of the respondent, the Crown, in relation to the choice of that date? We have now had two dates for this matter.

HIS HONOUR: I am totally at a loss to understand what the convenience of counsel has to do with the fixing of dates in this Court, Mr Agius.

MR AGIUS: May it please your Honour.

HIS HONOUR: Call the next matter, please.

AT 2.39 PM THE MATTER WAS CONCLUDED