On 14 December 2017, the appellants were convicted after a trial at which they were jointly charged with a number of others. Fook Choi Ching was convicted of one count of importing a commercial quantity of a border controlled drug, namely methamphetamine, contrary to s 307.1(1) of the Criminal Code (Cth). Teck Kong Wong was convicted of one count of aiding and abetting the importation of a commercial quantity of a border controlled drug, namely methamphetamine, contrary to s 11.2(1) read with s 307.1(1) of the Criminal Code (Cth).
On 26 June 2018, the appellants were sentenced. Mr Ching was sentenced to 23 years' imprisonment with a non‑parole period of 15 years. That sentence was backdated to 23 May 2016 to take into account time Mr Ching had spent in custody on remand. Mr Wong was sentenced to 26 years' imprisonment with a non‑parole period of 17 years. That sentence was backdated to 24 May 2016 to take into account time that Mr Wong had spent in custody on remand.
Each of the appellants filed a notice of appeal against his conviction. Mr Ching did so on 17 July 2018 and Mr Wong did so on 19 August 2019. They each subsequently filed a notice of discontinuance in respect of those appeals. Mr Ching did so on 28 November 2018 and Mr Wong did so on 23 December 2019. On the basis of the filing of the discontinuance notices, the Acting Court of Appeal Registrar signed certificates of conclusion of criminal appeal (Form 17). In the case of Mr Ching, the certificate of conclusion was signed on 29 November 2018 and in the case of Mr Wong the certificate of conclusion was signed on 24 December 2019.
On 29 April 2024, the appellants each lodged another appeal notice, purportedly pursuant to s 35E of the Criminal Appeals Act 2004 (WA), in respect of their convictions. That provision relates to second or subsequent appeals. Those appeal notices were not accepted for filing because the second appeals were incompetent as this court's jurisdiction in respect of the initial appeals had not been exhausted. That is because the appellants had not exhausted any avenues open to them to withdraw the discontinuance notices. See Ching v The Queen and Wong v The Queen.
The appellants have now filed applications to set aside the notices of discontinuance. In each case, the application is supported by affidavits sworn by the appellant. The applications were heard together at a hearing on 10 December 2024. Though each application must be determined on its own merits, it is convenient to deal with them together.
Mr Ching was required for cross‑examination and gave oral evidence at the hearing. Mr Wong was not required for cross‑examination. The respondent also filed affidavits from three lawyers who had dealings with Mr Ching in respect of his appeal against conviction. Those lawyers were Simon Watters, Kathryn Kraus and Luka Margaretic. Ms Kraus and Mr Margaretic gave oral evidence at the hearing.
In our view, for the reasons that follow, each of the appellants has established that they were either unaware of, did not authorise or had no understanding of the meaning and consequences of the filing of a notice of discontinuance. In each case, the filing of the notice was not a result of a deliberate and informed decision by the appellant. For those reasons, the notices of discontinuance are a nullity and orders setting them aside should be made.
[2]
The relevant legal principles concerning the withdrawal of a notice of discontinuance, whether because the notice is a nullity or in the exercise of the discretionary power in s 40(1) of the Criminal Appeals Act are outlined in KAN v The State of Western Australia[3] and YNT v The State of Western Australia.[4] Those principles have also been recently applied in Newton v The State of Western Australia.[5] It is unnecessary to repeat those principles here.
It is sufficient to say that a notice of discontinuance will be a nullity if it was not the result of a deliberate and informed decision by the appellant. The onus is on the appellant to establish that the notice was not the result of a deliberate and informed decision on his or her part. If that is established, the notice should be set aside.
A lawyer has general authority to make decisions regarding the conduct of criminal proceedings. However, the significance of the legal consequences of filing a notice of discontinuance is such that a lawyer does not have authority to sign and file a notice of discontinuance without prior client approval. The decision to file a notice of discontinuance is a decision that must be made personally by the appellant with an understanding of the purpose and consequences of the notice.[6]
The court also has a discretion to set aside a notice of discontinuance that is not a nullity. In exercising that discretion, the merits of the proposed grounds of appeal are a relevant consideration. If an application to withdraw a notice of discontinuance is granted on the ground that the notice is a nullity, there is no need to consider the discretionary power to permit the withdrawal of a notice. Nor, for that reason, is there any need to consider the merits of the proposed grounds of appeal. The proper course is for those grounds to be considered in the ordinary course at a hearing of the application for leave to appeal or the appeal.
[3]
Based on the affidavits and the evidence adduced at the hearing, the following factual circumstances are established.
Following his conviction at the trial, notices of appeal against both conviction and sentence were filed on behalf of Mr Ching. At that stage, Mr Watters was acting for Mr Ching, having received a grant of aid to provide an opinion as to the merits of any appeal. Mr Watters concluded that there was no merit in either an appeal against conviction or sentence. He prepared a written opinion to that effect dated 6 September 2018.[7]
Mr Watters became aware that a colleague, Ms Kraus, was due to visit one of her own clients at Albany Prison. At Mr Watters' request, Ms Kraus agreed to deliver some documents to Mr Ching whilst she was at the prison. Those documents were a copy of Mr Watters' advice, a notice of discontinuance and a notice of self‑representation. Ms Kraus is unsure whether the notice of discontinuance related to the conviction or sentence appeal or, indeed, whether there were one or two notices of each type.[8]
On 17 September 2018, when Ms Kraus met with Mr Ching at Albany Prison, an interpreter was not present. Whilst Ms Kraus knew that Mr Ching required an interpreter, her understanding was that her role was solely to convey documents to him and not to give any advice. When she handed the documents to Mr Ching, Ms Kraus told him, in essence, that the notice of discontinuance was the one that he should sign 'if you are not going ahead with the appeal'. She said that the notice of self‑representation was 'the one you sign if you need more time'. She told him that he need not sign either notice immediately and that it was fine if he wanted to speak to Mr Watters before doing so.[9]
On 18 September 2018, Mr Ching signed a notice of self‑representation in respect of the conviction appeal. That notice was sent by facsimile to Mr Watters on 19 September 2018 and forwarded by him to the court on 27 September 2018. This is the only notice that Mr Ching personally signed.[10]
On 19 October 2018, Mr Ching appeared at a directions hearing before Mazza JA in respect of both appeals. At that time, he was unrepresented. Mazza JA told Mr Ching that court records showed that he had filed an appeal against conviction as well as an appeal against sentence. Mr Ching said that he was only appealing against his sentence. When asked whether he wanted to discontinue his appeal against conviction, Mr Ching responded (through an interpreter), 'I have pleaded guilty for the conviction, and it's just for the length of the sentence'.[11]
Mr Margaretic was in court at the time of the directions hearing representing another unrelated appellant. He advised that his firm, MGM O'Connor Lawyers, would be prepared to assess Mr Ching's case and to act for him on a pro-bono basis. Mr Margaretic said that he had another client in the Albany prison and would be attending there in the second week of November 2018 and could see Mr Ching at that time.[12]
On 12 November 2018, Mr Margaretic and a colleague, Katherine Sierakowski, met with Mr Ching at Albany Prison. A telephone interpreter was used to facilitate communication at this meeting. Mr Ching does not recall Ms Sierakowski being present at the meeting, but we are satisfied that she was there as she prepared a file note of the meeting.[13]
There was conflicting evidence as to exactly what was said at the meeting on 12 November 2018 regarding the conviction appeal. According to Mr Margaretic, the meeting primarily concerned the sentence appeal but there was a mention of the conviction appeal, and that Mr Ching said words to the effect that he thought he was only appealing against his sentence.
When asked whether he received any instructions at the 12 November 2018 meeting regarding the filing of a notice of discontinuance, Mr Margaretic said, 'Those instructions were received during the meeting on the basis that Mr Ching was of the belief that his only appeal was in relation to the appeal against sentence, not against conviction'. Mr Margaretic said that Mr Ching expressed the view that Mr Watters had done nothing. Mr Margaretic responded that Mr Watters had provided an opinion, with which he agreed, and that there was no merit in the appeal against conviction. He said that it was at this stage that Mr Ching said that he thought his appeal was only against sentence.[14]
When asked whether he gave any advice regarding discontinuing the conviction appeal, Mr Margaretic said that he advised that, in his view, the appeal ought to be discontinued because there were no prospects of success. He said that Mr Ching 'took no issue with the discontinuance being filed'. However, 'no further advice was given in relation to the consequences of discontinuance'.[15]
Mr Ching's account of the meeting is different in that he accepts that Mr Margaretic told him that there were no grounds to appeal the conviction but says that he did not accept that advice and did not agree to discontinue the appeal. He says that he responded 'okay' when told that there were no grounds to appeal against conviction but that he did not agree with that opinion or to a notice of discontinuance being filed.[16]
There is no reference in the file note prepared by Ms Sierakowski to any discussion regarding a notice of discontinuance. Most of the note, which consists of a single page, relates to the sentence appeal. The only, somewhat oblique, reference to the conviction appeal is 'Ching only thought he was appealing sentence'.[17] The respondent did not seek to adduce any evidence from Ms Sierakowski regarding her note or her recollection of what occurred at the meeting.
A notice of discontinuance of the conviction appeal was filed on 28 November 2018. The notice was signed by 'MGM O'Connor Lawyers' on 27 November 2018.
There is no record of any letter being sent to Mr Ching confirming that he had given instructions to file a discontinuance notice in the conviction appeal. Nor does it appear that a copy of the notice was sent to him. Mr Ching only became aware that the notice was signed by MGM O'Connor Lawyers in the course of preparing affidavits for this application.
On 12 April 2019, a letter was sent by MGM O'Connor Lawyers to Mr Ching. That letter refers only to the appeal against sentence. It notes a telephone discussion on 5 April 2019 in which there was discussion about the prospects of that appeal. It seeks 'formal instructions' to 'withdraw the [a]ppeal in respect to sentence'.[18]
Mr Ching made no attempt to pursue the appeal against conviction in the period between November 2018 and the making of the present application.
[4]
Mr Ching's conduct in only signing and returning the notice of self‑representation provided to him by Ms Kraus indicates that, at least at that stage, he had no intention of abandoning his appeal against conviction. Ms Kraus presented the two notices as being a choice and that if he wished for more time, he should sign the notice of self‑representation and not the notice of discontinuance. In signing the notice of self‑representation, Mr Ching appears to have made a choice to proceed with his appeal against conviction.
Mr Ching did express a view that he thought he only had a pending appeal against sentence, both at the directions hearing on 19 October 2018 and the meeting on 12 November 2018, but that does not necessarily imply an intention to discontinue the conviction appeal. Nor does it imply an understanding that a notice of discontinuance would be filed or the effect of such a notice.
The discussion about the conviction appeal at the 12 November 2018 meeting was limited to Mr Margaretic saying that he thought that that appeal was without merit and Mr Ching responding that he only thought he had an appeal against sentence. Mr Ching may also have indicated that he understood when Mr Margaretic told him that the appeal against conviction had no merit by saying 'okay'. Mr Margaretic, perhaps understandably, took this to mean that Mr Ching did not wish to pursue the conviction appeal. However, it is not clear that there was any express reference to a notice of discontinuance, nor that instructions were given by Mr Ching to file such a notice. The absence of any reference to a notice of discontinuance in the file note supports a conclusion that it was not referred to. There was room for misunderstanding, particularly having regard to the fact that this conversation was facilitated by an interpreter who was only present by telephone.
In any event, even if Mr Ching did agree to the filing of a notice of discontinuance, the purpose and consequences of such a notice were not explained to him either by Ms Kraus or by Mr Margaretic. There is no reason to doubt Mr Ching's claim that he had no understanding that the filing of such a notice would bring his appeal against conviction to an end permanently.
The only matter that weighs against this conclusion is that Mr Ching did not subsequently raise any question regarding the appeal against conviction or seek to pursue it. The respondent submits that this shows an understanding on his part that that appeal had been discontinued.[19] In cross‑examination, Mr Ching explained his inaction on his inability to speak English, his unfamiliarity with the Australian legal system and the fact that he has been in prison.[20] Another obvious explanation is that, based on his responses at the directions hearing on 19 October 2018 and the meeting on 12 November 2018, he was in a state of some uncertainty as to what appeals were pending. In any event, inaction does not necessarily establish an understanding that the conviction appeal had been brought to a permanent conclusion.
On balance, we would accept that Mr Ching either did not provide instructions for the filing of a notice of discontinuance or, at least, did not understand the purpose and consequences of filing such a notice.
The filing of the notice was not the result of a deliberate and informed decision by Mr Ching to bring his conviction appeal to an end. For those reasons, the notice of discontinuance filed on 28 November 2018 is a nullity and an order setting it aside should be made.
[5]
Mr Wong was not represented at the time his discontinuance notice was filed on 23 December 2019. That notice was signed by him on 17 December 2019.
Mr Wong has filed affidavits in which he has stated that at the time he signed the notice, he was not legally represented and did not understand the consequences of the notice. He states that English is not his first language and that there was no interpreter available to interpret the form to him.[21]
Mr Wong was not required to be available for cross‑examination and his evidence was not challenged.
[6]
The uncontested evidence of Mr Wong is that English is not his first language and that he did not have the benefit of an interpreter at the time he signed the notice. Further, it is the uncontested evidence of Mr Wong that he was unrepresented, did not have the benefit of legal advice and did not understand the consequences of filing the notice of discontinuance. It must also be noted that, at that time, the relevant form did not include a warning as to the consequences of filing it.
As with Mr Ching, the respondent refers to the inaction on Mr Wong's part in attempting to pursue the appeal against conviction as being evidence that he understood that the notice of discontinuance had brought his appeal to an end.[22] However, Mr Wong also laboured under the same disadvantages, namely that he was in prison, has limited English and is unfamiliar with the Australian legal system. Furthermore, Mr Wong did not have the benefit of legal assistance, either at the time the notice was filed, or since.
On balance, we would accept that Mr Wong did not understand the purpose and consequences of filing a notice of discontinuance.
The filing of the notice was not the result of a deliberate and informed decision by Mr Wong to bring his conviction appeal to an end. For those reasons, the notice of discontinuance filed on 23 December 2019 is a nullity and an order setting it aside should be made.
[7]
The appellants have established that the filing of the notices was not the result of deliberate and informed decisions by each of them to bring their appeals against conviction to an end. In each case, therefore, the notice of discontinuance is a nullity. It is unnecessary to consider whether the notices should otherwise be set aside in the exercise of the court's discretion. There is no need to consider the merits of the proposed grounds of appeal at this stage. Those grounds can be considered in the normal course at the hearing of the applications for leave to appeal or the appeals.
The applications to set aside the notices of discontinuance should be granted in each case. We would make the following orders:
[8]
The notice of discontinuance filed 28 November 2018 be set aside.
The certificate of conclusion of criminal appeal (Form 17) signed on 29 November 2018 be set aside.
[9]
The notice of discontinuance filed 23 December 2019 be set aside.
The certificate of conclusion of criminal appeal (Form 17) signed on 24 December 2019 be set aside.
[10]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.