LUK CHUN YUE v. R.

IN THE COURT OF APPEAL

1995, No. 384
(Criminal)

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J U D G M E N T

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Ching, J.A. (giving the judgment of the Court):

1. On 18th May, 1995, the applicant was convicted of one charge of affray and one charge of being a member of a triad society. On 1st June, 1995, he was sent to a Detention Centre. It would appear that his counsel at trial had taken the precaution of drawing up preliminary grounds of appeal against conviction on the same date as that on which the conviction occurred. Nevertheless, no application for leave to appeal was lodged until 4th January, 1996, after he had already been released from the Detention Centre. He now seeks an extension of time within which to apply for leave to appeal.

2. The reasons he put forward in his application for not lodging an application for leave to appeal within time are as follows. He says that he was advised by his trial counsel that he should not file the application within time for fear that his sentence might be increased from a term in a Detention Centre to a term in a Training Centre. He says that he was advised by his trial counsel that if he wished to appeal against conviction after his sentence had been served he could apply to the Legal Aid Department for a copy of the preliminary grounds of appeal which should be filed in an application for extension of time in which to apply for leave to appeal.

3. Those reasons show that there was a deliberate decision on the part of the applicant not to file this application for leave to appeal until after the time therefor had expired. Those reasons are patently absurd. We are asked to believe that counsel advised that sentence could be increased upon an appeal against conviction and that counsel advised the applicant, in effect, that he should therefore wait until after his sentence had been served before setting the appeal process in motion. We do not accept the mere say so of the applicant to that effect, especially when trial counsel had already drafted preliminary grounds of appeal as already stated.

4. Before us, he advanced the reason as that he had no money. He says that after he was discharged from detention he found a job to earn money but again he had not enough and that is why he represents himself today. He protests his innocence. Those are no reasons for extending time.

5. We have, however, also examined the preliminary grounds drafted by his trial counsel to see if time should nonetheless be extended. It is sufficient to say that none of them persuade us to do so. This application for extension of time was an impudent and frivolous one and the extension of time is refused.