WONG KIM WAH and Another v. R.

IN THE COURT OF APPEAL

1993, No. 258
(Criminal)

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. On 28th April 1993, after a trial before His Honour Judge Yeung, sitting as a Deputy Judge of the High Court, the applicant Wong Kim Wah was convicted of two offences: (1) having imitation firearms with him with intent to commit an arrestable offence; (2) conspiracy to rob; for which he was sentenced, respectively, to 4 and to 7 years' imprisonment. Those terms were ordered to run concurrently giving a totality of 7 years' imprisonment.

3. His original application for leave to appeal was against conviction and that was timeously made on 31st May. He subsequently filed an application out of time for leave to appeal against sentence. The application in respect of conviction was abandoned by him on 20th October 1993.

4. On 14th December 1993, the judgment of this court in relation to his co-defendant, Ma Kim Fung, in his appeal against conviction was delivered. Ma's application for leave to appeal against conviction was allowed, his conviction quashed and the sentence set aside. A retrial was ordered. At the same time Wong, who was present in respect of his application concerning sentence out of time, was granted legal aid by the court so that his position in respect of conviction could be re-considered.

5. On 28th December 1993 a Notice of Motion was filed in this court whereby Wong asked for leave to withdraw his Notice of Abandonment. The point of this was that at the time that he abandoned he was, necessarily, unaware of the judgment of this court in respect of his co- defendant and it could well be said that his mind did not go with his act. That Notice of Motion was for some reason, which we do not understand, placed before a single Justice of Appeal. Without deciding the matter we doubt if an application of this nature comes within the ambit of S.83Y of the Criminal Procedure Ordinance Cap.221. We consider that that procedure was wrong. Matters of this kind are for the full bench of the Court of Appeal, not a single Justice, but, be that as it may, that application, at our invitation, has been renewed today in the face of this court and we have granted leave to treat the abandonment as a nullity. Mr. Saw for the Crown, quite rightly, does not contest that.

6. The reasons given in the judgment of the court of 14th December 1993 in respect of Ma applied equally to the applicant today and it is unnecessary for us to go into the details of that judgment. Again, Mr. Saw, quite properly, does not seek to uphold the conviction in those circumstances.

7. We therefore gave leave to appeal, treated the hearing as the hearing of the appeal and allowed the appeal, quashed the conviction and set aside the sentence. Mr. Saw has applied for a retrial and Mr. Mullick for the appellant does not contest Mr. Saw's application. This is clearly a proper case where there should be a retrial, in the interests of justice and in the interests of the public.

8. We have been asked to admit the applicant bail. We noted that upon the order being made in respect of Ma for a retrial, he was granted bail. This application also being uncontested, we would make the required order. We would admit the applicant to bail on the terms of a $4,000 cash deposit; a $4,000 surety; that his travel documents remain with the court, they have been already surrendered; that he report to Kwai Fong Police Station on the Monday of each week between the hours of 12:00 noon to 4:00 p.m. until his retrial or further order.

9. We have been informed that the retrial of Ma is set for 23rd May 1994. It is obvious that the retrial of Wong should take place at the same time and the Clerk of the Lists is directed to ensure that this is so. He is to be retried on a fresh indictment.