HKSAR v. CHUNG MAN CHI

CACC 334/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 334 OF 2005

(ON APPEAL FROM DCCC NO. 284 OF 2005)

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REASONS FOR JUDGMENT

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Hon Saw J (giving the reasons for judgment of the Court)

1. The applicant was convicted on 16 July 2005 after a trial in the District Court of

(i)  one charge of fraud contrary to section 16A of the Theft Ordinance Cap 210 (Charge 1)

(ii)  two charges of Theft contrary to section 9 of the Theft Ordinance Cap 210 (Charges 2&3)

2. He was sentenced to be imprisoned for 3 years and 6 months:

3. On 2 August 2005 a Notice of Appeal against conviction (Form XI) was filed.

4. On 4 August 2005 Messrs Raymond Chan, Kenneth Yuen & Co solicitors filed a Notice to Act on his behalf.  On 28 October 2005 they wrote to the Registrar to advise that they were no longer instructed by the applicant and that he was applying for Legal Aid.

5. On 16 January 2006 his application for Legal Aid was refused.

6. On 25 January 2006 the applicant filed a Notice of Abandonment (form VII) wherein he abandoned his application for leave to appeal against his convictions.

7. The applicant was released from prison on 30 August 2007 having served his sentence.

8. On 25 May 2012 we dismissed his application that his abandonment of his appeals on 25 January 2006 be treated as a nullity.  We said then that we would give our reasons in due course.  These are our reasons.

The convictions

9. It was the prosecution’s case in the lower court that in the period covered by the three charges namely December 2001 to December 2004, the applicant had systematically deceived the victim into making payments to him and into a bank account in his wife’s name.  The deceptions were unsophisticated but the victim was obviously naive. Over $2,000,000 was paid or transferred.

10. It was the evidence of the victim that he and the applicant met in September 2001 when they were both hospitalised.  They struck up a friendship.  The victim wanted to arrange to bring his elder son to Hong Kong from the Mainland.  The applicant falsely represented to him that he could facilitate this.  Over a period of 12 months the victim paid to the applicant no less than $250,000 cash.  Needless to say the applicant made no attempt to arrange for the victim’s son to come to Hong Kong.  This was the substance of the 1^st Charge.

11. Having gained the trust of the victim the applicant began to borrow substantial sums of money from him which were transferred into the bank account of the applicant’s wife.  The reason why the victim was prepared to advance him money was that he had been assured by the applicant that he had an older wealthy brother living in Greece who would ensure that he was repaid.  There was no older brother in Greece.  Throughout the period of the deception the applicant regularly telephoned the victim and assumed the identity variously of

(i)  his older brother

(ii)  his older brother’s son

(iii)  the administrators of the estate of the applicant (the victim was told that he had died in the United States of America and had left a vast estate to the victim).

12. The 2^nd charge of theft alleged that between August 2002 and December 2002, the victim had paid into a bank account as directed by the applicant the sum of $221,672.

13. The 3^rd charge of theft alleged that between January 2003 and December 2004, the victim had paid into a bank account as directed by the applicant the sum of $1,674,182.

14. The deceptions were revealed when the victim asked his physiotherapist at the Tai Po Hospital for financial assistance.  He explained that he needed the money to obtain the administration of the applicant’s estate.  The physiotherapist told the victim that she had seen the applicant just one month before.  A report was made to the police.

15. The applicant was arrested.  Under caution, the applicant admitted the offences and that he had used different voices over the telephone and assumed the role of various characters in order to deceive the victim.

16. At his trial his defence was that the admissions were fabricated and the monies paid or transferred were loans.

The application

17. On 19 July 2011 the applicant filed an affirmation wherein he sought an order that his earlier notice of abandonment for leave to appeal conviction be treated as a nullify and for leave to appeal.  His reason for wanting now to pursue an appeal stated was:

“In March 2011 I received a civil summons issued by lawyers for Lau Yue Ying asking me for the amount mentioned in the criminal case DCCC 284/2005. As I think that the accusations by Lau Yue Ying are exaggerated and untrue, I absolutely need to appeal against the verdict in the criminal case DCCC 284/2005.”

18. He explained why it was that he abandoned his appeal he said:

“After my conviction by Deputy Judge Browne in DCCC 284/2005 on 16 July 2005 in the District Court, my lawyer immediately lodged an appeal for me. Later, as I could not pay for the lawyer’s fees, my lawyer applied to the court to abandon the appeal…

When I was serving my sentence, I asked the welfare officer many times about the progress of my appeal. However, every time the welfare officer just asked me to be patient. On 30 April 2007, I was released as my sentence was served. When I was leaving, the welfare officer asked if I still wanted to appeal. I thought that as my sentence had been served already, there was no point to continue with the appeal. Therefore, I said no.

19. LAU Yuen Ying was the person named as the victim in the charges faced by the applicant.

Discussion

20. It is trite law that a court considering an application of this kind must determine whether the earlier abandonment was a nullity.  Recently in HKSAR v Ooi Lim Khoon [2011] 5 HKLRD 100, 104, this court differently constituted said:

“13. The law on what will amount to a nullity is derived from the English Court of Appeal decision of R v Medway where the court said at p.798 that the kernel of the nullity test is that the Court is satisfied:

that the abandonment was not the result of a deliberate and informed decision; in other words that the mind of the applicant did not go with his act of abandonment”

16.  The burden is clearly on the applicant to persuade this Court by credible evidence of facts which would satisfy the nullity test.  The starting point for the Court will be that in most cases persons signing an important legal document by which they throw away their right of appeal will be taken to be aware of what they are doing.  As Ma CJHC said in HKSAR v Law Kam Fai at p.894D-E:

In most cases, however, without more, a person can be taken to realize that when he is signing a notice of abandonment, he is doing just that.”

21. More than 5 years have elapsed since the applicant filed his notice of abandonment. It is apparent from the applicant’s affirmation that had the victim not instituted civil proceedings against him, he would not have attempted to revive the matter now.  There was nothing in the material filed by the applicant to suggest that his earlier abandonment of his appeal was anything but a deliberate and informed decision.  The applicant’s reason for abandoning his appeal does not admit of an interpretation that he was not aware of the consequences of his actions.

22. Before us he asserted that he had been told by a solicitor and the prison welfare officer that having abandoned his appeal he could later renew it.  It suffices to say that we did not believe this account.

23. The applicant’s explanations did not satisfy the nullity test.

24. The application to treat the earlier abandonment as a nullity was without merit and was therefore refused.