R v Huyen Phuong Thi Phan

THE VICE PRESIDENT, LORD JUSTICE EDIS:

1. This is an application on behalf of Huyen Phuong Thi Phan for an order from this court that her notice of abandonment of her appeal against conviction should be treated as a nullity so that her application for leave to appeal against conviction can be determined before the full court in due course. The chronology of the proceedings

2. On 31 March 2022, in the Crown Court at Southwark before His Honour Judge Tomlinson, the applicant was convicted of one count of concealing criminal property, contrary to section 327(1) of the Proceeds of Crime Act 2002.

3. On 5 September 2022, she was sentenced to 18 months' imprisonment.

4. On 29 April 2022, an application for leave to appeal against that conviction was received at the Criminal Appeal Office. This had been settled by leading and junior counsel and contained the proposed grounds of appeal.

5. On 18 November 2022, the single judge refused leave to appeal against conviction.

6. On 2 December 2022, the applicant renewed her application.

7. On 8 December 2022, a Form A was signed on the applicant's behalf by her solicitors (Blackfords) abandoning all proceedings in this court.

8. In support of the application, the applicant has supplied an affidavit dated 6 November 2025. This summarises the significant impact on her mental health of the criminal investigation, the trial, her conviction and sentence. She was deeply troubled by being imprisoned because she was a person of good character and has children whose wellbeing was affected by these events. She summarises that by saying: "I lost all hope and attempted to end my life. I was placed on suicide watch in prison for the first time. I was not in a position to comprehend or act on any further legal opportunities in my current state."

9. The affidavit then sets out a further significant event. A co-defendant in the same proceedings named Hanh Nguyen was granted leave to appeal against her conviction. The circumstances of her alleged offending and the grounds of her appeal were said to be very similar to those of the applicant. That appeal was determined on 7 July 2023, the judgment bearing the Neutral Citation number [2023] EWCA Crim

769. The court then quashed Nguyen’s conviction and directed a retrial. That retrial took place in the Crown Court at Southwark during the summer of 2025 and resulted in acquittals on all counts. It was following all of those events in November of last year that this application was initiated.

10. The affidavit does not set out all of that history, but it does record that before she signed or caused to be signed her notice of Abandonment, the applicant had learned that permission had been granted to her former co-defendant to bring that appeal. As she says: "[That] presented a potential opportunity for me to take my application for permission to appeal to the Full Court. However, at the same time, I received a letter from the Legal Aid Agency demanding payment of over £200,000 in legal fees, with a four-week deadline."

11. The critical part of this affidavit deals with her decision to cause her solicitors to sign the notice of abandonment. It says this: "The disproportionate amount of legal and health issues, in addition to the consequences of the criminal appeal was too much for me to consider at that point in time. I simply was too mentally unwell to consider taking my appeal to the Full Court. If the appeal was successful I would likely have to face another period of delay, followed by a long trial. and potentially yet more legal aid costs if I lost; if my appeal was unsuccessful I would continue into the desperate sense of hopelessness I was already feeling. In this context, I abandoned my application."

12. The affidavit concludes with a passage which explains in clear terms the circumstances in which she has recovered her wellbeing following her release from prison. She sets out a number of projects in which she has been involved and talks about rebuilding her life. She now is, she says, stronger and in a more stable position. That is why, she says, she has caused this application to be made.

13. The principles on which the court must act are clear. They were established as long ago as R v Medway (1976) 62 Cr App R 85 and have not since been doubted. In Medway, the court said this at 798G-H: "In our judgment the kernel of what has been described as the ‘nullity test’ is that the Court is satisfied that the abandonment was not the result of a deliberate and informed decision, in other words that the mind of the applicant did not go with his act of abandonment. In the nature of things it is impossible to foresee when and how such a state of affairs may come about; therefore it would be quite wrong to make a list, under such headings as mistake, fraud, wrong advice, misapprehension and such like, which purports to be exhaustive of the types of case where this jurisdiction can be exercised. Such headings can only be regarded as guidelines, the presence of which may justify its exercise."

14. That decision remains good law. That was reasserted by this court in R v Paul James Smith [2013] EWCA Crim 2388. That court reviewed some other cases and derived four propositions at its paragraph [58]: "i) A notice of abandonment of appeal is irrevocable, unless the Court of Appeal treats that notice as a nullity. ii) A notice of abandonment is a nullity if the applicant’s mind does not go with the notice which he signs. iii) If the applicant abandons his appeal after and because of receiving incorrect legal advice, then his mind may not go with the notice which he signs. Whether this is the case will depend upon the circumstances. iv) Incorrect legal advice for this purpose means advice which is positively wrong. It does not mean the expression of opinion on a difficult point, with which some may agree and others may disagree."

15. Mr Sam Thomas, who has argued this application on behalf of the applicant, as we understand it pro bono, has also drawn our attention to two further decisions by this court in exercising this jurisdiction. Those are R v Anthony Riley [2017] EWCA Crim 243 and R v Burton [2021] EWCA Crim 1297. Neither of those two decisions purports to do anything other than to apply the established test to the different facts with which the court was then concerned. Discussion and decision

16. The test from Medway makes it clear that the mind of the applicant must not have gone with the signing of the notice of abandonment of the appeal. That will usually mean that for some reason the applicant must have been in ignorance of some important matter which concerned the taking of the decision to abandon the appeal. In this case no such ignorance is alleged. As we have said in quoting from the affidavit, the applicant sets out her thought process in causing the abandonment in clear terms. The factors for and against proceeding were weighed and she took the decision that she did. There is no suggestion that she was unable to understand what the impact of abandoning her application for leave to appeal would be or that she was misled in any material respect. The application is based solely on the fact that when she had to take her decision she was suffering from traumatic consequences of her conviction and imprisonment. None of that deprived her of the ability to take the decision which she took. As she says in the affidavit in the passage from which we have quoted, "I abandoned my application". She knew what she was doing.

17. We make the point that there is no medical evidence to support any proposition that her mental state at the time of the abandonment was such that she was unable to understand the effect of what she was doing. We have no evidence from the solicitors who lodged the abandonment on her behalf and on her instructions.

18. There is also no explanation in the affidavit of the long passage of time between the abandonment and the making of this application. We do not know when the time is said to have come when her incapacity, such as it was, was overcome. Neither do we know from any evidence that has been supplied what her state of awareness was about the proceedings involving Hanh Nguyen, her former co-defendant. We do not know whether the timing of this application, postdating by just a few months Nguyen's acquittal, was a deliberate decision or a coincidence.

19. Whatever may be the answer to any of those questions, applying the legal test to the evidence that has been supplied, it is quite clear in our judgment that this applicant's mind did go with the notice of abandonment and that it was served further to her decision and on her instructions. She has subsequently changed her mind, but that does not render her original abandonment a nullity.

20. For those reasons, we reject this application, recording as we do our gratitude to counsel for conducting it on behalf of his client pro bono, as we have explained. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]