HKSAR v. LIMBU METRAPARSAD

CACC 139/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 139 OF 2001

(ON APPEAL FROM DCCC NO. 1190 OF 2000)

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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 is an application to treat as a nullity an abandonment of an application for leave to appeal against sentence. The applicant was charged with burglary. The particulars of the offence alleged that in August 2000, he entered a building in Yuen Long with intent to inflict grievous bodily harm on the occupant. On 23 March 2001, he was convicted, and he was sentenced on 6 April 2001 to a term of three and a half years' imprisonment.

2 On 18 April 2001, he gave notice of intention to appeal against conviction and sentence, and on 20 July he gave notice of abandonment, and his applications were accordingly dismissed. But in September 2001 he sought to revive his application although he has since intimated that he wishes to do so only in relation to sentence. He confirms that today.

3 The reasons he gives in his affidavit, for the abandonment, was that he was refused legal aid, that he cannot defend himself in court, and that he is ignorant of Hong Kong law. He has sought today merely to throw himself on the court's understanding of what he says of his personal circumstances, none of which seem to us to impinge upon the question of abandonment which we have to address. He has mentioned some psychiatric problem which he says manifest itself with nervousness and shaking, and a need to take some tablets, but this is not mentioned in relation to abandonment, merely, again, in mitigation of his present circumstances of incarceration. We are satisfied that that particular issue, in this case, also does not impinge upon the question of the abandonment.

4 The applicant has not made out the type of exceptional circumstances in which an abandonment will be treated as a nullity and, accordingly, the application is dismissed. We would add, in case it is of any solace to the applicant, that we have examined the circumstances of the offence and the sentence, and in the light of the facts found by the judge, an attack at night by three men of whom the applicant was one, on a home occupier, the sentence was wholly unimpeachable.