HKSAR v. WONG CHO SUM

CACC 43/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 43 OF 2001

(ON APPEAL FROM DCCC 619 of 2000)

__________________

______________

______________

J U D G M E N T

______________

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

1 This applicant seeks leave to retract an abandonment of an application for leave to appeal against sentence. He is, as a matter of law, required to show that his abandonment was a nullity.

2 The applicant was convicted in the District Court in two trials of a series of offences arising from model agency scams. There were two District Court cases. The first was no. 478 of 2000 in which the applicant was charged with fraud arising from the operation of two companies called Golden Fashion and Dragon International, in respect of which, upon conviction, he was sentenced in December 2000 to two and half years' imprisonment. The other was District Court case no. 619 of 2000, concerned with the operation of a company called Sino Act. Here there were sixteen charges, three of forgery, and the rest of theft of choses in action and of cash, and he was convicted and sentenced, again in December 2000, to a term of three years' imprisonment, ordered to run consecutively to the two and a half years for the earlier case.

3 His appeal in relation to conviction in the Sino Act case came before the Court of Appeal in June 2001 and, by a judgment dated 13 July 2001, the applications in relation to conviction were each dismissed; some on the merits, and in the case of some charges on the applicant's express abandonment. The Court then noted that applications in the Sino Act case for leave to appeal against sentence were outstanding and directed them to be heard in conjunction with the hearing of the applications on an appeal against convictions and sentence imposed in District Court case 478 of 2000. The applicant had specifically asked for an adjournment of the sentencing applications so that he could be represented, legal aid having been refused.

4 The applicant's original ground of application in relation to sentence in case 619 of 2000 was that his sentence was too long and that other grounds would be advanced by his lawyer. On 20 July 2001 he wrote to the Registrar asking for a transcript, saying that in the course of the Sino Act trial his counsel had been prevented by the judge from advancing argument in relation to section 27 of the Organized and Serious Crimes Ordinance, Cap. 455.

5 A Notice to Act was filed by solicitors on his behalf in relation to the (remainder of the) Sino Act appeal.

6 By Notice dated the same day, the applicant abandoned his application for leave to appeal against sentence in relation to the other case (that is the Golden Fashion and Dragon International case) and accordingly that application was dismissed.

7 At the hearing of the application for leave to appeal against sentence on 2 November 2001, the applicant was represented by counsel. At that hearing, he abandoned his application for leave to appeal against sentence in the Sino Act case which was CACC No. 43 of 2001 with which we are today concerned. Accordingly, the application was dismissed by the court that day.

8 Nothing then happened so far as the applicant in this case was concerned until over a year later, when he wrote to the Department of Justice seeking figures of statistics on model agency frauds. That information was supplied by a letter dated 21 January 2003.

9 The application now before us is dated 15 January 2003. The grounds are these: that the police had not by 2 November 2001 provided the applicant with the statistics which he had requested, and that those statistics would show that the number of similar cases have dropped year by year. He wishes to use this information in support of his appeal, and has in mind some recent cases which he has cited.

10 The application is ill founded. There is no evidence to show, and no reason to suppose, that the abandonment of the application in relation to sentence was a nullity. The applicant had counsel acting for him and there is no suggestion that his mind did not go with his deed. If statistics had been wanted or important, no doubt counsel would have pursued that matter. But, in any event, the question of statistics is irrelevant to the applicant's case for the enhancement of sentence about which he says he is aggrieved was not an enhancement based on prevalence of the offence but was based rather on the fact that these were organized crimes.

11 The application is refused.