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Tang Lu Guang v State [2011] FJCA 33; AAU13.07 (27 May 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS

CRIMINAL APPEAL NO. AAU0013 OF 2007
(High Court Criminal Action No.16 of 2004)

BETWEEN:

TANG LU GUANG
Appellant

AND:

THE STATE
Respondent

Coram: Hon. Justice William R. Marshall, Justice of Appeal
Hon. Justice Izaz Khan, Justice of Appeal
Hon. Justice William Calanchini, Justice of Appeal

Counsel: Ms S Vaniqi for the Appellant
Ms P Madanavosa for the Respondent

Date of Hearing: Thursday, 26th May 2011
Date of Judgment: Friday, 27th May 2011

JUDGMENT

William Marshall, JA

1. There is a preliminary question in this renewal of a leave application and application for time to be extended.
   
2. Exercising the powers of the Court of Appeal as a Single Judge pursuant to section 35 of the Court of Appeal Act, on 3rd February 2011, I took the matter under advisement. I wrote a seven page, twenty one paragraph ruling. I discussed the points of complaint about the High Court guilty plea process which commenced on a guilty plea basis in respect of a murder information before Gates J on 24th January 2004 with sentence of life imprisonment without a minimum term set, being handed down on 14th January 2005. I dismissed the appeal process which commenced almost two years out of time and ended before President of the Court of Appeal Mr Justice Gordon Ward on 23rd February 2007. I then discussed a process of vague complaints which then resulted, as late as 26th February 2010 in an allegation against Mr Wu the Court Interpreter at the plea and sentence hearings in the period December 2004 to January 2005.
   
3. The purpose of section 35(2) of the Court of Appeal Act is to deal with applications which have no chance of success are an abuse of process and, therefore, vexatious.
   
4. In paragraphs 20 and 21 of my ruling I explained that my conclusion was that Tang Lu Guang's applications were an abuse of process and that the appeal ought to be dismissed. I said:
   

"20. Does an appellant in a criminal matter who has had his appeal on sentence dismissed have the right to then advance at a later time an appeal against conviction? I need only answer the question in the present context. I am satisfied that finality for further appeals whether against sentence or conviction arose after the ruling of President Gordon Ward on 23rd February 2007. The present appeal is an abuse of process. It is also out of time. This is not a case where it would have been proper to extend time. It should be dismissed because it is an abuse of process and because it is out of time. I have spent time on the substantive issues nonetheless, so that I can be sure that somehow or another there was no miscarriage of justice in the period 25th June 2004 to 14th January 2005 with regard to Tang Lu Guan.

ORDERS

21. My orders are:

1. That the application to extend time for applying for leave to appeal be dismissed.
   
2. That this application be dismissed as an abuse of process.
   
3. That this application, in the alternative, be dismissed being out of time."
   
5. Although this matter has been listed as a renewal before the Court of Appeal (the Full Court) of my hearing on 3rd February 2011 and my decision of 21st February 2011 there is not, on the facts of this case, the usual jurisdiction for a renewal after leave to appeal has been refused. The first reason is that I as Single Judge used section 35(2) to dismiss the appeal. The second reason is that this is not a case where leave to appeal was refused. That stage was never reached because time would have to have been extended and my decision was that it should not be extended.
   
6. It follows that this Court should order the dismissal of the renewed application for leave to appeal before the Court of Appeal by reason of lack of jurisdiction for the Full Court to entertain it.
   

Izaz Khan, JA

7. I agree.
   

William Calanchini, JA

8. I agree.

William Marshall, JA

ORDER

9. The order of the Court is:

(1) This appeal of Tang Lu Guang is dismissed by reason of lack of jurisdiction on the part of the Court of Appeal to hear a renewal of the application dismissed by the Single Judge on 21st February 2011.

Hon. Justice William R. Marshall
Justice of Appeal

Hon. Justice Izaz Khan
Justice of Appeal

Hon. Justice William Calanchini
Justice of Appeal