HKSAR v. TUMURBAGANA ENKHTUR

CACC 316/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 316 OF 2014

(ON APPEAL FROM DCCC 550 OF 2014)

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the court) :

1.  The applicant, who appears in person, having been refused the grant of legal aid, applies for leave to appeal against the total sentence of 2 years and 6 months’ imprisonment imposed on him by District Court Judge G. Lam on 12 September 2014 following his conviction on 1 August 2014, on his pleas of guilty, to three charges of attempting to obtain property by deception on 13 May 2014, contrary to section 17(1) of the Theft Ordinance, Cap. 210.

The facts

2.  On the afternoon of 13 May 2014, the applicant attempted to use an HSBC Visa credit card in the name of Anthony John Ross to purchase five smart phones and five watches from a branch of Fortress in Lockhart Road, Causeway Bay.  However, payment authorisation was rejected and the applicant declined a request of a member of the staff of that branch to provide proof of identity (Charge 1).  Nevertheless, the applicant produced an American Express card in the same name and proceeded to purchase those items, to a value of $42,480 (Charge 2).  Having been told that the stock was not available, the applicant returned to the branch an hour later to collect his purchases.  However, a report had been made to the police by members of the staff of Fortress, and when the applicant left the branch with those items he was arrested by the police.  Both the HSBC Visa credit card and the American Express credit card were found in his possession.

3.  Earlier, the applicant had attempted to use the American Express card at a branch of Sasa in Lockhart Road to purchase perfume, to a value of $5,171 (Charge 3).  Payment authorisation for that transaction had been refused.

4.  In the early afternoon of 13 May 2014, Mr Anthony John Ross had lost his HSBC Visa credit card together with his American Express credit card in Wanchai.

Reasons for sentence

5.  In his reasons for sentence the judge noted that the applicant was a 25-year-old married man from Mongolia with a “clear record”, who had arrived in Hong Kong the day before the commission of the offences.  The applicant was in his final year of his studies at University.  The judge stipulated a starting point for sentence of 3 years’ imprisonment.  In doing so, he noted the judgment of this Court in HKSAR v Chen Wing Hong [1], in which it had been said that “the integrity of the credit card system is highly important and those who attempt to beat the system by fraudulent methods necessarily erode the confidence people are entitled to place on this aspect of modern commercial life.”  Then, the judge adverted to the judgment of this Court in HKSAR v Tandon William Chaing [2], noting that this Court had cited with approval [3] the judgment of the Court in HKSAR v Kwan Po Keung [4] in which Deputy District Court Judge Cheang had taken a starting point for sentence of 3 years’ imprisonment for one charge relating to the unauthorised use of a genuine credit card on a single occasion to purchase $56,116 of jewellery in one transaction.

Discount

6.  The judge said he afforded the applicant a discount of one-third from that taken as the starting point for sentence.  In the result, the judge imposed a sentence of 2 years’ imprisonment in respect of each charge.  Having noted that the commission of the offences reflected in Charges 1 and 2 arose from the attempt to purchase the same goods in one shop, the judge ordered that those sentences be served concurrently.  However, noting that Charge 3 reflected the applicant’s attempt to purchase goods in another shop on another occasion, the judge ordered six months of the sentence of imprisonment imposed for that offence to be served consecutively to the terms of imprisonment imposed in respect of Charges 1 and 2.  Accordingly the total sentence imposed on the applicant was 2 years and 6 months’ imprisonment.

Grounds of appeal against sentence

7.  In a handwritten attachment to the application for leave to appeal against sentence, the applicant submitted that the judge had adopted too high a starting point for sentence.  He said that his case was, “a very small case”.  He contended that, in effect, the starting point taken for sentence was 45 months’ imprisonment.  He invited the Court to have regard to the sentences imposed in DCCC 621/2014 [5].

Application dismissed

8.  On 18 September 2014, the applicant filed Form XI with the Court, giving notice of his application for leave to appeal against sentence.  On 7 October 2014, the applicant’s application for legal aid was refused.  By a notice filed with the Court, pursuant to rule 39 of the Criminal Appeal Rules, Cap. 221, dated 16 October 2014, the applicant gave notice of his abandonment of his application for leave to appeal against sentence.  In an accompanying handwritten letter, the applicant explained that he did so having been refused the grant of legal aid, in which refusal he been told that his sentence was not excessive and that he had weak grounds of appeal.  Moreover, the applicant said that he felt he was “incapable of representing myself”, so that he was abandoning his appeal.  By operation of law, the application was dismissed on that date.

9.  In a handwritten attachment to an affirmation filed with the Court on 2 January 2015, the applicant sought to “re-open my appeal”.  He explained that he had “cancelled my appeal” having been refused the grant of legal aid, in circumstances where he had no contact with his family and no means of financial support to fund private representation.  Now, he said that he had established contact with his family and friends in Mongolia and had found “the financial means to support my appeal through a private lawyer.”  As a result, he wished to re-open his appeal.

The dismissal of the application: a nullity

10.  This Court has no statutory or inherent jurisdiction to re-open an appeal which has been abandoned and dismissed unless the abandonment is a nullity, or the matter has been referred to the Court of Appeal by the Chief Executive, pursuant to section 83P of the Criminal Procedure Ordinance, Cap. 221. The application for leave to appeal against sentence having been dismissed by operation of rule 39 of the Criminal Appeal Rules, Cap. 221, it is necessary first that the applicant satisfies the Court that his mind did not go with his act of abandonment, so that the dismissal is a nullity.

11.  It is to be noted that in filing Form VII, by which the applicant gave Notice of Abandonment, the applicant signed his name beneath the statement “I abandon all further proceedings in regard thereto”.  Furthermore, in the handwritten document attached to the Notice of Abandonment, having given reasons for his abandonment, the applicant wrote, “…thus I’am abandoning my appeal.”

12.  The applicant has advanced no reasons, either in advance of or at the hearing, by which this Court could be satisfied that the applicant’s mind did not go with his act of abandonment.

Conclusion

13.  For the reasons set out above, the application to treat the abandonment of the application for leave to appeal against sentence, and the consequent dismissal, as a nullity is refused.

[1] HKSAR v Chen Wing Hong (CACC 40/2005; unreported, 1 June 2005).

[2] HKSAR v Tandon William Chaing (CACC 404/2012; unreported, 15 August 2013).

[3] HKSAR v Tandon William Chaing, paragraph 8.

[4] HKSAR v Kwan Po Keung [2012] 2 HKLRD 12.

[5] HKSAR V Syed Rizal Bin Syed Al Attas (DCCC 621/2014; unreported, 4 September 2014).