Cheung v The Queen - [1999] HCATrans 340

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cheung v The Queen

Details

AGLC: Cheung v The Queen [1999] HCATrans 340
Case: [1999] HCATrans 340
Decision Date

CaseChat Overview and Summary

In the matter of *Cheung v The Queen*, the applicant, Cheung, sought special leave to appeal to the High Court of Australia against a decision of the Supreme Court of Queensland. The dispute concerned the applicant's conviction for a serious criminal offence.

The primary legal issue before the High Court was whether the Supreme Court of Queensland had erred in dismissing the applicant's appeal against his conviction. Specifically, the High Court was required to consider whether the trial judge had made any errors in law that would have rendered the conviction unsafe or unsatisfactory.

Gleeson CJ, in chambers, considered the application for special leave. The decision to grant or refuse special leave to appeal hinges on whether the case raises a question of law that is of general public importance, or whether it is otherwise in the interests of the administration of justice to grant leave. Without further detail on the specific grounds of appeal or the reasoning of the Supreme Court, the precise legal principles applied by Gleeson CJ in assessing the application for special leave cannot be fully elaborated.

The application for special leave to appeal was refused.

Orders