Court of Final Appeal Decision: Criminal Appeal lives on after death

In 2012, the appellant had been convicted after trial on one charge of conspiracy to defraud and served his sentence. On 14 March 2014, the Court of Appeal dismissed his application for leave to appeal against conviction. On 4 August 2014, the Court of Final Appeal granted the appellant leave to appeal from the judgment of the Court of Appeal. However, the appellant passed away before the scheduled hearing could take place before the Court of Final Appeal. The appellant’s widow wished to continue the appellant’s appeal. On 14 January 2015, the appellant’s widow took out a summons for leave to be made a party to the appeal and for the appeal to be carried on as if she had been substituted for the appellant notwithstanding his death. The Court was therefore concerned only with the disposal of that summons and not the disposal of the substantive appeal.

The CFA determined and answered the following questions:

  1. Question (i): Is there jurisdiction to continue a criminal appeal after an appellant’s death and, if so, on what basis, or does the appeal simply abate (i.e. terminate)?

  2. Answer: the Court held that it retained jurisdiction to hear a final criminal appeal where a convicted appellant has applied for leave to appeal but then subsequently dies and has a discretion whether to do so or not. In the present case, the Court had granted leave to appeal on the basis that a point of great and general importance was involved and that it was reasonably arguable that substantial and grave injustice had been done to the appellant. Thus, the Court held that, taking all the relevant factors into account, in particular the critical factor of the grant of leave to appeal, it was a case in which it was appropriate to exercise the Court’s discretion to permit the appeal to continue notwithstanding the appellant’s death.

  1. Question (ii):If there is jurisdiction to continue, is it necessary to substitute a living party for a deceased appellant and, if so, what is the power and procedure by which the Court can do so?

  2. Answer: the Court held that it is a matter of discretion whether the Court considers that substitution of a living party for the deceased appellant is appropriate when it is exercising its jurisdiction to continue the appeal after the appellant’s death. As the Court has jurisdiction to hear an appeal notwithstanding an appellant’s death, the Court’s exercise of discretion to order a substitution of a living party for the deceased appellant in order to achieve that purpose is plainly an exercise of implied power ancillary to the Court’s statutory jurisdiction.

  1. Question (iii):Assuming there is jurisdiction to continue the appeal, how is the Court’s discretion to be exercised in the present case?

  2. Answer: The Court held that the discretion whether to continue an appeal after an appellant’s death must be exercised on a principled basis. Factors relevant to the exercise of this discretion may include: (i) whether leave to appeal has been or will be granted; (ii) the existence of an applicant who wishes for the appeal to be continued; (iii) the continuation of the appeal on a proper adversarial basis; and (iv) the reasons of the applicant for wishing the appeal to be continued. The Court held that this list of factors was not exhaustive nor was it intended to apply as a checklist of factors that had to be present in every case. However, it highlighted that the grant of leave would likely be a critical factor. This is because where leave to appeal has been granted on a point of law, it demonstrates that the Court is of the view that the appeal is of sufficient importance to be heard by the Court as the final appellate court in Hong Kong.

Post Script: At the subsequent appeal heard by the Court of Final Appeal in February 2016, the appeal by the deceased Appellant was unanimously allowed:HKSAR -v- CHENG CHEE-TOCK THEODORE (成之德) FACC No. 7 of 2014