Hon Yeung VP (giving the Judgment of the Court)
高等法院上訴法庭副庭長楊振權頒發上訴法庭判案書：

Introduction
引言

On 17 November 2016, the applicant (Tang Tik Hung) was convicted after trial for one count of trafficking in a dangerous drug and one count of possession of a dangerous drug, and was sentenced to a total of 24 years’ imprisonment.
2016年11月17日，申請人（鄧荻雄）經審訊後被裁定一項“販運毒品”和一項“管有毒品”罪罪名成‍立，並被判處入獄共24年。

The applicant applied for leave to appeal against conviction on 28 November 2016.  The application was fixed to be heard by a full bench of the Court of Appeal on 7 February 2018.
申請人不服定罪，並在2016年11月28日提出上‍訴許可申請，要求獲准就定罪上訴。該申請排期在2018年2‍月7日由上訴法庭合議庭審理。

During the intervening period, the applicant was in the custody of the Correctional Services Department.  On 30 November 2017, the Commissioner of Correctional Services informed the court that the applicant had passed away because of an illness in a hospital on 29 November 2017.
期間，申請人是由懲教署看管。2017年11月30‍日，懲教署署長知會法庭，申請人於2017年11月29‍日在醫‍院病逝。

This court has to consider how to deal with the application for leave to appeal which has already been made by the applicant.
本庭要考慮如何處理申請人已提出的上訴許可申‍請。

Sections 82 and 83G of the Criminal Procedure Ordinance, Cap 221 of the Laws of Hong Kong (the Ordinance) confer the right of appeal on a convicted person so that he may appeal to the Court of Appeal against his conviction or sentence.  The Ordinance has not laid down how the appeal against conviction or sentence should be dealt with if the person convicted or sentenced dies after applying for leave to appeal.
香港法例第221章《刑事訴訟程序條例》（《條例》）第82及 83G 條賦予被定罪的人上訴的權利，令他可以針對其定罪或判刑向上訴法庭提出上訴。《條例》沒有列出如被定罪或判刑的人在提出上訴許可申請後死亡，其針對定罪或判刑的上訴應該如‍何處理。

In dealing with provisions similar to sections 82 and 83G of the Ordinance, the English Court of Appeal has clearly stated that if a convicted person who has lodged an appeal against conviction or sentence dies, his application will automatically terminate and become abated (see Stuart-Smith LJ’s judgment in R v Maguire [1992] QB 937, 945D-F, and cases such as R v Kearley (No 2) [1994] 1 WLR 555 and R v Jefferies [1969] 1 QB 120).
英國的上訴法庭在處理和《條例》第82及83G‍條相同的條例時，表明如就定罪或判刑提出上訴的被定罪的人死亡，其上訴申請會自動終止及變得無效（abate）（見R v Maguire [1992] QB 937案判案書第945頁D–F行Stuart-Smith LJ法官的判詞、R v Kearley (No 2) [1994] 1 WLR 555及R v Jefferies [1969] 1 QB 120等案）。

In R v Rowe [1955] 1 QB 573, the English Court of Criminal Appeal clearly stated that if a convicted and sentenced person who lodged an appeal died before the appeal hearing, his widow could not proceed with the appeal on the ground of clearing her husband’s name because she had no legal interest in the matter.
在R v Rowe [1955] 1 QB 573案，英國刑事上訴法‍庭更表明當一名被定罪及判刑的罪犯提出上訴，但在上訴聆訊前死亡，其未亡人亦無權以證明該名罪犯的清白為理由繼續進行上訴，原因是該名未亡人對事件不具任何法律認可的權‍益（Legal Interest）。

The English Court of Appeal also found that even if a third party would be affected by the result of the appeal against conviction, that third party should pursue the matter by way of other procedures (see R v Maguire above).  The above decisions were considered to be unfair under certain circumstances, and therefore in 1995, section 44A was added to the Criminal Appeal Act 1968 of the United Kingdom so that the Court of Appeal has the power to permit an appeal against conviction or sentence to commence or continue even after the appellant’s death.
英國的上訴法庭更認為即使有第三者會受被定罪的上訴結果影響，該第三者亦應透過其他程序追討（見上述R v Maguire案）。上述裁決被認為在某些情況下會導致不‍公，因此英國在1995年將第44A條加入Criminal Appeal Act 1968，令上訴法庭有權在上訴人死亡後批准展開或繼續針對他的定罪或判刑而提出的上訴。

If the Court of Appeal follows the English precedent cases, the application for leave to appeal already lodged will automatically terminate and abate because of [the applicant’s] death, and this court will have no jurisdiction to hear this appeal, and must indicate that “the proceedings of this appeal have terminated upon the applicant’s death”.  This is the decision that Miss Hermina Ng, Senior Public Prosecutor, has asked of this court.
假若上訴法庭依循英國案例，則申請人已提出的上‍訴許可申請會因為他的去世而自動終止及變得無效，而本‍庭亦沒有司法管轄權審理本上訴，並要表明“本上訴的法律程序已因申請人死亡而終止”。這是代表答辯人的吳穎軒高‍級檢控官要求本庭作出的裁決。

The Hong Kong Court of Final Appeal (CFA) has given the final decision on how to deal with an appeal where a convicted person having obtained leave to appeal to the CFA had passed away before his appeal was heard.  It was held that when a convicted person having his appeal dismissed by the Court of Appeal obtained leave to further appeal to the CFA, notwithstanding his subsequent death before the final appeal was heard, the CFA retained the discretion to hear his appeal and might order a living person to substitute for this deceased appellant (see HKSAR v Cheng Chee Tock Theodore (2015) 18 HKCFAR 292).
香港終審法院就一名已獲許可上訴至終審法院的被定罪，但在聆訊前死亡的人的上訴應如何處理作出終審判‍決。終審法院認為一名被定罪的人在其上訴被上訴法庭駁‍回後獲准再向終審法院上訴時，即使該名被定罪的人在終‍審法院聆聽其上訴前死亡，終審法院仍有酌情權處理其上‍訴，及可以下令某在世的人替代已故的上‍訴‍人（見HKSAR v Cheng Chee Tock Theodore (2015) 18 HKCFAR 292案）。

As Miss Ng emphasised, the CFA exercised the power under section 31 of the Hong Kong Court of Final Appeal Ordinance, Cap 484 of Laws of Hong Kong, and submitted:
誠如吳高級檢控官強調，終審法院行使的權力是建‍基在香港法例第484章《香港終審法院條例》第31條，並認‍為：

“(1)Once the section 31 right was exercised, the appeal was treated as pending. Section 31 was not expressed as a right of appeal limited to a convicted person since the right extended also to any party to the proceedings, including the Secretary for Justice. Where leave to appeal was granted by this Court, there was a strong public interest in such an appeal being heard, which went beyond that of an individual appellant (R v Jefferies [1969] 1 QB 120; R v Kearley (No 2) [1994] 2 AC 414; R v Smith [2004] 1 SCR 385 distinguished).
“(1)一旦第 31 條的權利被行使，上訴即視為待‍決。第 31 條並非表述為只限於被定罪的人行使的上訴權利，因為該權利亦延展至法律程‍序的任何一方，包括律政司司長。凡法庭給‍予許可上訴至本院，這表示存在著強烈公眾利益以支持審理有關上訴，而該項利益超越上‍訴人的個人利益（R v Jefferies [1969] 1 QB 120，R v Kearley (No 2) [1994] 2 AC 414，R v Smith [2004] 1 SCR 385予以區別）。

(2)The proper construction of section 31 in the light of its context and purpose of the Ordinance is:
(2)在考慮《條例》的文意及其目的下，第 31 條的恰‍當詮釋如下：

Having regard to the Court’s role as the final appellate court hearing appeals on important points of law, once a party to the proceedings had invoked the Court’s jurisdiction under section 31 by making an application for leave to appeal under section 33, the Court retained jurisdiction to hear a final criminal appeal notwithstanding the subsequent death of a party and had 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 (Hin Lin Yee v HKSAR (2010) 13 HKCFAR142 considered).”
考慮到本院的角色，即作為審理包含重‍要法律論點的上訴案件的最終上訴法院，一旦法律程‍序的一方根據第33條提出上訴許可申請，從而訴諸本院在第‍31條下的司法管轄權，則儘管一方其後去世，但本院仍保留司法管轄權審理該項最終刑事上訴，並具有司法管轄權決‍定是否如此行。這項結論乃循詮‍釋《條例》下的相關法定條文而得出，而非透過參考關於向法院申訴的憲法安排而得出（Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142予以考慮）。”

Although the decision of the CFA in Cheng Chee Tock Theodore above was based entirely on the construction of section 31 of the Hong Kong Court of Final Appeal Ordinance, the essence of the decision also emphasised that the appellant had already obtained leave to appeal to the CFA before his death, and once leave was granted, it meant there was a strong public interest in the appeal being heard.  The CFA had reservations about the decision that an appeal would automatically terminate and abate if the appellant passed away before the appeal hearing by the Court of Appeal.  The CFA also doubted the way that the Court of Appeal in England dealt with this issue.
雖然終審法院在上述Cheng Chee Tock Theodore案的裁決完全是建基在對《香港終審法院條例》第31條的詮‍釋；終審法院的判案重點亦強調該案的上訴人未去世前，已獲‍得上訴許可上訴至終審法院，而法庭給予上訴許可上訴至終審法院表示案件存在著強烈公眾利益支持審理有關上‍訴，但終審法院對上訴至上訴法庭的上訴人在聆訊前死‍亡，其上訴會自動終止及變得無效的裁決有保留。終審法‍院亦對英國上訴法庭處理該議題的方法存疑。

The Court of Final Appeal made the following observation at paragraph 37 of its judgment:
終審法院在判案書第37段有以下觀察：

“Mr Cooney submitted that it would be ‘inconsistent and odd’ if a right of appeal were to survive where an appellant died while appealing to this Court but to abate in the same situation in a pending appeal to the Court of Appeal.  This, of course, assumes that an appeal to the Court of Appeal will abate on the appellant’s death, which may or may not be a correct assumption” (Emphasis added).
“Conney先生陳述時指如上訴人向本庭（終審法院）上訴的權利在其死亡後繼續存在，但在同一情況下，上訴人上訴到上訴法庭的上訴卻自動終止及變‍得無效，會是奇怪和不一致的。該說法是假設上‍訴法庭的上訴案件會因上訴人死亡而變得無效。但該說法不一定正確。”（非官方翻譯）

It is also stated expressly at note 33 of the judgment:
終審法院在判案書第33項註釋更表明：

“Any inconsistency or oddity would be removed if the relevant statutory provisions governing intermediate appeals were to be construed in a manner similar to section 31 of the Ordinance.”
“如將適用於中間步驟上訴（即上訴至上訴法庭的上‍訴）的有關法例以詮釋《香港終審法院條‍例》第‍31‍條的同一方法處理，則任何怪異或不一致都會去掉。”

The CFA obviously did not agree with the decision of the English Court of Appeal in cases such as Kearley and Jefferies, and even opined that the way adopted by the Supreme Court of Canada in dealing with the same issue in R v Smith [2004] 1 SCR 385 was more appropriate.
終審法院明顯不同意英國上訴法庭在Kearley及Jefferies等案的裁決，更認為加拿大最高法院在R v Smith [2004] 1 SCR 385，就相同事件所採納的處理方法更為合適。

In R v Smith above, the Supreme Court of Canada held that the court retained the discretion, in the interests of justice, to continue to deal with the case after the appellant’s death, but the exercise of such discretion should be rare.  In their view:
在上述R v Smith案，加拿大最高法院裁定當一名上訴人死亡後，法庭亦有酌情權，為了公正理由，繼續處理案件，但該酌情權要盡可能少用。加拿大最高法院認為：

“Once the appeal is properly constituted with a live appellant, the court must then consider whether to exercise its jurisdiction to hear the appeal despite it being rendered moot by the death of the accused, or to abate the appeal.  The general test is whether there exist special circumstances that make it ‘in the interests of justice’ to proceed. That question may be approached by reference to the following non-exhaustive factors:  the presence of a proper adversarial context; the strength of the grounds of the appeal; the existence of special circumstances that transcend the death of the individual appellant/respondent, such as a legal issue of general public importance, a systematic issue related to the administration of justice, or collateral consequences to the family of the deceased, to other interested persons, or to the public; the expenditure of limited judicial (or court) resources; and whether continuing the appeal would go beyond the judicial function of resolving concrete disputes and involve the court in free-standing legislative-type pronouncements more properly left to the legislature itself.  Those cases in which it will be proper to exercise jurisdiction will be rare and exceptional.”
“當一名在世的上訴人已提出的上訴被視為恰當，法‍庭要考慮應否行使酌情權繼續聆聽上訴。雖然結‍果會因上訴人已死亡而變得無實質意義，或應因‍上訴人已死亡而終止上訴。

Although the CFA pointed out that the question of how the intermediate appeals made to the Court of Appeal were to be dealt with was based on the construction of a different legislation, the inclination the CFA had expressed was obvious.
處理該議題時，應考慮下列非全面的因素：恰當的對立背景是否存在；上訴理由的強弱；是否有超越個別上訴人/答辯人死亡的特殊情況，例如涉及普‍遍公眾重要性的法律議題，和執行公義有關的系統問‍題，或是對死者的家庭、其他利益有關人士或公‍眾有附帶後果的；司‍法（法‍庭）有限資源的開支；及繼續上訴是否超越解決實質爭議的司法功能及將法‍庭牽涉入獨立的立法或宣告，而該些宣告理應由立法機構作出。要適當行使司法管轄權的案件是例‍外及罕見的。”（非官方翻譯）

If the Court of Appeal rules that the appeal against conviction or sentence automatically terminates and abates because the applicant who has applied for leave to appeal dies before the hearing, and as a result the appeal cannot continue, the court in such a case would have no jurisdiction to deal with the appeal even if there is a strong public interest in the case.  Such a decision would obviously go against the rationale behind the decision of the CFA in Cheng Chee Tock Theodore, and indirectly deprive the CFA of jurisdiction over the case because if it was correct for the Court of Appeal to find the appeal automatically terminated and abated on the appellant’s death before the hearing, the CFA could not exercise any jurisdiction over the case.
雖然終審法院指出上訴至上訴法庭的中間步驟的上訴應如何處理建基在不同法例的詮釋，但終審法院所表達的傾向性是顯而易見的。假若上訴法庭因為上訴許可申請人在聆訊前去‍世而裁定他針對定罪或判刑提出的上訴許可申請自動終止及失效，致令其上訴申請無法繼續，則即使案件存在著強烈公‍眾利益，法‍庭亦無權處理。這樣的裁決明顯違反了終審法‍院在Cheng Chee Tock Theodore案的判決理念，亦間接剝‍奪了終審法院就案件的管轄權，原因是如上訴法庭裁定上‍訴人在聆訊前去世，其上訴會自動終止及失效是正確的，則終審法院對案件亦無權行使任何管轄權。

Although under exceptional circumstances and having been satisfied that a point of law of great importance or grave injustice is involved in a case, section 83P of the Ordinance may be invoked to resolve the problem, intervention by the executive authorities is required under section 83P before the case can be placed before the court.  In our view, the jurisdiction of the court over cases should be unconditional and must not be based on the discretion of the executive authorities.
當然，在特殊情況及確保涉及重要法律議題或存在嚴重不公的案件，《條例》第83P條可被援用解決問題，但《條例》第 83P 條要透過行政干預，案件才能提交至法庭處‍理。本庭認為法庭對案件的司法管轄權應該是無條件的，更不應建基在某些行政酌情權上。

In the aforesaid circumstances and in order to reflect the rationale behind the decision of the CFA in Cheng Chee Tock Theodore, this court considers that the relevant decisions made by the English Court of Appeal should not be followed.  In our view, if a convicted and sentenced person dies after applying for leave to appeal against conviction or sentence, the Court of Appeal retains the discretion to consider all relevant factors before deciding if the application for leave should continue or automatically terminate and abate.  We find that the factors set out at para 51 in the judgment of Cheng Chee Tock Theodore and in Smith most helpful in guiding the court to decide how to exercise the discretion.
在上述情況下及為了反映終審法院在Cheng Chee Tock Theodore案的判決理念，本庭認為不應跟隨英國上訴法庭的相關判決。本庭認為被定罪及判刑的人在針對定罪或判刑提出上訴許可申請後去世，上訴法庭仍有酌情權考慮各有關因素後才決定上訴許可申請應繼續或自動終止及變得無效。本庭亦認為Cheng Chee Tock Theodore案判案書第51段及Smith案列出的有關因素具指導性，能協助法庭決定如何行使酌情權。

The facts of the present case are simple and straightforward.  The applicant was convicted of one count of “trafficking in a dangerous drug” and one count of “possession of a dangerous drug” and sentenced to 24 years’ imprisonment.  Before his death, he had made an application for leave to appeal against conviction.  After his death, no family member has indicated that the application for leave to appeal already made by the applicant would continue.  The incident carries no importance to the public.  No other person would be affected.  We have also considered the merits of the case, and do not think that we should exercise the discretion to continue to deal with the applicant’s application for leave to appeal after his death.  Therefore, this court declares that the application for leave to appeal made by the applicant and the related legal proceedings terminate and abate on the applicant’s death.
本案的情況簡單直接，申請人被裁定一項“販毒罪”和一項“管有毒品”罪罪名成立，並被判處入獄24‍年。他去世前提出上訴許可申請，要求法庭批准他就定‍罪上訴。他死後，沒有家人表示會繼續申請人已提出的上訴許‍可申請。事件不具任何公眾重要性，亦不會影響任何其他人‍士。本庭亦有考慮過案件的是非曲直，本庭認為不應行使酌情權，在申請人去世後繼續處理他已提出的上訴許可申‍請。因此，本庭正式宣告申請人已提出的上訴許可申請及相關的法律程序因申請人去世而終止及無效。

The Applicant (deceased): unrepresented
答辯人：由律政司高級檢控官吳穎軒代表。

Miss Hermina Ng, SPP of Department of Justice, for the respondent
申請人（已去世）：沒有律師代表。