HKSAR v. HO TUNG SHING

CACC 19/1994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 19 OF 1994

(ON APPEAL FROM HCCC 120 OF 1992)

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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 22 November 1993, the Applicant pleaded guilty in the High Court before Leong J (as he then was) to sixteen counts of robbery, three counts of attempted robbery, two counts of shooting with intent to resist lawful arrest, one count of possessing an imitation firearm at the time of committing a robbery and one count of possessing arms and ammunition without a licence. The Applicant admitted a summary of facts in relation to all of these offences and counsel mitigated in accordance with the pleas which had been entered. The Applicant was sentenced to seventeen terms of life imprisonment. Six other substantive terms of imprisonment were imposed concurrently.

2. For reasons which are not explained in the papers before us, the Applicant's trial for murder proceeded only after sentence on the other twenty-three counts on the indictment had been passed. The Applicant was acquitted of murder but convicted of manslaughter on 31 December 1993, and he was then sentenced to a concurrent term of twenty-five years' imprisonment.

3. On 11 January 1994, the Applicant sought leave to appeal against sentence and at the hearing on 1 September 1994, he was represented by the same counsel who had represented him in the court below. In those proceedings, Bokhary JA (as he then was), when upholding the sentences imposed, described the Applicant as:

"the mastermind of this highly dangerous gang of armed robbers who committed a series of offences of the most organised kind in which well over a hundred million dollars of property was obtained, and in which one innocent person has been left paraplegic and another dead. That last observation can be made without exhausting the list of persons who were shot by this man. He led this gang ..... from the front."

4. On 1 March 2002, the Applicant filed an application for leave to appeal out of time against conviction on counts 9 and 11 of the indictment. These were the offences related to shooting with intent to resist lawful arrest.

5. The grounds which the Applicant has set out very largely relate to the sentence being served by him. He has provided no satisfactory explanation for this application being eight years out of time. At one point in the course of what he had to say today, he sought to criticise the advice he had been given by his counsel, although it is noticeable that he had been prepared to retain his counsel's services for the appeal against sentence which followed the proceedings in the court below. As to the merits, the Applicant had been advised by experienced counsel at trial and so far as this application is concerned, it is readily apparent that the Applicant, who pleaded guilty to both relevant charges, has no grounds whatever.

6. Leave out of time is refused and the application is dismissed.