HKSAR v. CHIU CHUNG YUEN

CACC 416/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 416 OF 2002

(ON APPEAL FROM HCCC 186 OF 2002)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1 This applicant committed seven robberies between 26 December 2001 and 29 January 2002, on which latter date he was arrested. He was charged with seven offences and pleaded guilty in the magistrate's court on 24 May 2002, and was committed then for sentence to the High Court.

2 Each offence was a robbery of a prostitute operating a one-woman brothel. The applicant posed as a customer and, in each case, he flourished a cutter with which he threatened the victim and from whom he stole sums of money. In one case, he placed his arm round the neck of his victim; in two others he covered the victims' mouth with his hand; and in two instances he tied his victims' hands and legs. Immediately after the last incident the police were alerted and the applicant was arrested in the vicinity that day.

3 The applicant was sentenced by Mr Recorder Ching Y Wong SC on 30 July 2002 to a term of nine and a half years' imprisonment; four years and eight months concurrent terms in relation to the December offences, and five years in relation to the January offences, and ordered the two groups of sentences to run consecutively save as to two months deduction for the applicant's cooperation with the police.

4 On 23 August 2002 the applicant lodged his notice of application for leave to appeal against sentence by which he asserted that the sentence was too heavy and that the judge had failed to recognize that he had surrendered to the police. The applicant was granted legal aid on 8 October 2002 but the legal aid certificate was discharged on 14 November 2002. By notice dated 29 November 2002 the applicant abandoned his application for leave to appeal against sentence, so that by operation of statute that application stands dismissed.

5 The applicant now seeks to revive his application for leave. He says that he was not informed until the end of November that legal aid had been withdrawn and that he abandoned his application because the hearing was then but less than a week a way, namely 5 December, and that since he did not have sufficient money to instruct a lawyer he abandoned his appeal. This new application, which we must view as an application to treat the abandonment as a nullity, is dated some months later, 7 July 2003.

6 This Court has consistently followed the reasoning in The Queen v Medway [1976] 1 62 Cr App R 85 on the issue of abandonment of appeals and their attempted resuscitation. An abandonment may only be treated as an nullity, as the English Court said in that judgment at page 98, where

"... 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."

7 The applicant has not shown that his mind did not somehow go with his act of abandonment, or that he was unaware of the nature of the act which he performed. Accordingly, this application fails.