HKSAR v. WONG FUNG

CACC 306/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 306 OF 1999

(ON APPEAL FROM DCCC 508 & 733 OF 1996)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 1 February 2000, this court, differently constituted, dismissed the Applicant's leave application in relation to conviction in the District Court before Judge Chua on two charges of wounding with intent and two charges of common assault, following a trial in 1996. That application was lodged approximately two and a half years out of time. The Applicant had voluntarily absented himself from the trial and was sentenced to a total of two and a half years' imprisonment in his absence.

2. Prior to the hearing of the application relating to conviction, on 17 December 1999, the Applicant's solicitors served notice of abandonment of an application relating to sentence. This, of course, was also an application that had been made more than two years out of time. The Applicant (D5 at trial) was legally represented when he abandoned his application relating to sentence. We are now invited to treat the abandonment of his application for leave to appeal against sentence as a nullity.

3. In his written grounds provided some time ago, the Applicant said as follows:

"I had applied for appeal against (the conviction) and sentence in June 1999. As the Legal Aid Department did not approve of assigning a lawyer for me, I entrusted my family to look for someone to engage a lawyer for me. A lawyer was engaged through a friend of my family member and the lawyer's clerk all along told (me) to be rest assured that they would handle it properly for me. It was only when I appeared in court that I came to know that the lawyer had not made any application for me to appeal against the sentence. Thus, I asked him why he had not done so. He then said that because the trial judge made many procedural mistakes and was prejudiced against me, the trial was not conducted in a fair manner. The lawyer (opined) that there was a very great chance for this case to have a trial de novo. Therefore, I thought that there would be a trial de novo. This is the reason why (I) now (appeal) out of time. It is hoped that Your Lordship will appreciate that. I now appeal against sentence in relation to the first and second charges."

4. The first and second charges were the wounding with intent charges on which D5 received concurrent sentences of two and a half years' imprisonment. Today, D5 has addressed us at some considerable length saying that the real culprit behind the events which led to his conviction was a man called "Hak Chai" who he has named all these years after the event. He began by telling us he only learnt the true name of this man a month ago, but well into his account in court today he referred to the statements of his co-defendants at trial who had apparently named Hak Chai as having been involved in the incident.

5. The Applicant recited numerous details of the case which appear to bear little relationship to the evidence given in the trial about his involvement. More importantly, the Applicant has provided no material of any relevance to these proceedings although he has demonstrated that he has no remorse for his crimes whatever, despite his expressions of so called remorse in court.

6. The Applicant did bring to our attention a newspaper report of an assault case which has been read out. We cannot regard this as having any significance to these proceedings because every case is decided on its own facts, and the facts of that case were entirely different to the facts in this one.

7. It is quite apparent to us that no good reason has been provided for us to treat the previous abandonment of the application as a nullity and we do not propose to do so. Furthermore, there is no merit in this application at all so far as the facts are concerned which led to the sentence imposed by the judge. The Applicant is a person who has a bad record and was, as the judge expressed it, the person who "directed" the attack by ten men, including himself, on PW3 who was eventually rendered unconscious. The evidence showed that the victim had been kicked and punched as he lay on the ground. At the same time as this was going on, there were three other victims also assaulted in what appears to have been a concerted effort to assault four people by the group with which the Applicant was associated.

8. The application is dismissed. It is wholly without merit as we have said already and we order that three months of the time the Applicant has spent in custody shall not count towards his sentence.