HKSAR v. LAU YUK LUNG

HCMA912/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.912 OF 2002

(ON APPEAL FROM TMCC596 OF 2002)

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REASONS  FOR  JUDGMENT

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1. The appellant was convicted on his own plea of one charge of ‘remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully’, and was sentenced to 15 months’ imprisonment, to be served consecutively to a total term of 7½ years’ imprisonment for ‘robbery’ and ‘rape’.  He seeks now to appeal against the 15-month sentence.

Chronology of events

2. The appellant was an illegal immigrant who found his way into a flat and robbed and raped a domestic helper.  In March 2002, he was caught and charged with the three relevant offences.  In June 2002, he pleaded guilty to the ‘robbery’ and ‘rape’ charges during committal.  In August 2002, he was sentenced to a total of 7½ years’ imprisonment by the Court of First Instance.  Later in the same month, a further 15 months were passed on him for ‘unlawful remaining’.  Citing HKSAR v. Tong Fuk sing [1999] 3 HKC 142, the magistrate ordered that term to be served consecutively to the sentence for ‘robbery’ and ‘rape’.

3. On 3 September 2002, the appellant lodged his appeal against the 15-month term.  On 22 October 2002, he was refused legal aid.  On 28 October 2002, he gave notice to abandon the appeal.  On 1 November 2002, it was formally dismissed.  Almost two years later, on 4 and 8 November 2004, the appellant wrote twice to the Court to have the appeal restored.  By a letter dated 23 November 2004, he was directed by the Court to explain why his earlier abandonment should be treated as a nullity.  This he did by an affirmation dated 29 November 2004.

Whether the appeal should be restored

4. The appellant’s affirmation stated that he abandoned his appeal because he had no legal representation, but that on further consideration, he would like to continue with it.

5. This accords with his letters dated 4 and 8 November 2004 in which mention was also made of his ignorance of Hong Kong law, and the lack of time to engage a lawyer after being refused legal aid.

6. Before me, and upon my pinpointing his letter of 28 October 2002, however, the appellant admitted that, even back at that time, he knew why he was refused legal aid, i.e. counsel had considered the point but took the view that 15 months, consecutive, was not a sentence open to successful challenge.  He admitted that it was because he had met inmates who were given concurrent terms for ‘unlawful remaining’ in prison that he was prompted to seek to restore his appeal.  He admitted that the following words were written in his own hand in the letter of 28 October 2002 : “after careful consideration, I have decided to abandon my appeal”.

7. In my judgment, this falls way short what is required to nullify a previous abandonment of appeal, the test for which is as stated in HKSAR v. Lai Siu Cheung, CACC487/2002, following the English case of Medway [1976] 1 62 Cr. App. R.85. 

8. The appellant’s application to treat his abandonment as a nullity and to have his appeal restored is dismissed.  I should add that even if there were grounds to allow the restoration, I would still have dismissed the appeal.  In my judgment, the 15-month term, consecutive, can neither be said to be wrong in principle nor manifestly excessive.