HKSAR v. GURUNG SHAILESH

CACC 293/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 293 OF 2015

(ON APPEAL FROM DCCC NO. 597 OF 2015)

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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 twice been refused the grant of legal aid [1], seeks the leave of the Court to treat his Notice of Abandonment of his application for leave to appeal against the total sentence of 42 months’ imprisonment imposed on him by District Judge A. Kwok, following his pleas of guilty on 24 August 2015 to two charges of robbery, contrary to section 10 of the Theft Ordinance, Cap. 210 as a nullity.

2.  Having filed Form XI with the Court on 4 September 2015, by which he gave notice of his application for leave to appeal against sentence, on 12 October 2015 the applicant filed a Notice of Abandonment of his application.  In consequence, his application was dismissed, pursuant to Rule 39 of the Criminal Appeal Rules, Cap. 221.

3.  By a Notice for Extension of Time for giving Notice of Appeal against Sentence, filed with the Court on 17 December 2015, together with an affirmation of the same date the applicant invites this court to treat his abandonment as a nullity.  In his affirmation he explained that, after the refusal of his applications for the grant of legal aid and for assistance from the Hong Kong Bar Association Free Legal Service Scheme, he lost hope and was afraid that his sentence would be increased.  As a result, he filed a Notice of Abandonment on 12 October 2015.  Now, however he had a “detailed knowledge about it.”  That was why this application was “out of date”.  In another affirmation, dated 23 December 2015 the applicant asserted that the judge had imposed a “high sentence” on him.  As a result, he said, “I would like to withdrawal for abandonment of appeal against sentence.”

4.  In his grounds of appeal, attached to Form XI, the applicant said simply, “the judge fail to give the sentence to the young first one defend and also the high sentence for the defend.” (sic)

The facts

5.  At around 8 p.m. on 11 April 2015, two young women walking along On Lok Road, Yuen Long were approached from behind by the applicant.  He held their necks.  The applicant was holding an 8-inch long knife, which he placed on the neck of the second young woman, after which he grabbed the handbag of the other young woman.  It contained, inter alia, a mobile telephone, with a Sim card worth HK$1,000, a purse with identification documents, a bank card, a personal Octopus card $515.  Then, the applicant severed the shoulder strap of the second young woman’s handbag causing it to fall to the ground, from which the applicant seized it.  It contained, inter alia, $121.50, a personal Octopus card and her photograph.  Then, the applicant also took her Samsung S3 mobile telephone, worth $3,500, from her right front trousers’ pocket, after which he fled.

6.  The first young woman requested passers-by to call the police, whilst the second young woman and a passer-by chased after the applicant.  However, the applicant turned around and confronted them as he held a knife.  Then, he made good his escape. 

7.  At around 8:18 p.m., the applicant was identified by the two young women and the passer-by outside a supermarket in Sau Fu Street, Yuen Long, about 1 km away from the place where the robbery had occurred.  Having been arrested, a search of the applicant revealed the presence of some of the stolen items, the two mobile telephones stolen from the two young women, including an Octopus card belonging to the first young woman and a photograph of the second young woman.

8.  Having been cautioned the applicant admitted that the two mobile telephones found on him did not belong to him.  Then, the applicant led the police to a public toilet in Tai Kiu Market in Yuen Long, where the handbags of the two young women and most of the stolen property were found inside a toilet bowl.

9.  In a subsequent video recorded interview, conducted under caution, the applicant admitted in detail having committed the robberies and then having discarded of some of the stolen property in the toilet.

Reasons for sentence

10.  In his reasons for sentence, the judge noted that the applicant was 20 years of age and, having been born in Nepal, had been educated in Nepal.  However, in 2010 he had come to Hong Kong to be reunited with his parents.  Having been employed as a construction site worker, then in the catering business he had become unemployed.  The judge said that it was submitted in mitigation that the applicant had committed the offences because he needed money to feed his addiction for heroin.

11.  The judge said that he took into account the fact that the applicant had cooperated with the police after having been arrested and had been instrumental in the recovery of the stolen property found in the toilet.  However, he went on to state that robbery was, “a very serious offence and no court would accept economic reasons for committing crimes.”  Having noted that in its judgment in R v Mo Kwong Sang [2]this Court had said that the appropriate sentence for robbery, in circumstances where a knife or other dangerous weapon had been displayed to a victim, was 5 years’ imprisonment, the judge went on to observe that the applicant had not only displayed a knife to his victims but had actually held the knife against the neck of the second young lady.  That was an aggravating factor in the commission of the robbery the subject of Charge 2.

12.  The judge said that, although the court had a discretion to depart from the guidelines for sentence articulated by this Court in Mo Kwong Sang, “strong exceptional and compelling reasons” were required, so that such cases would be “extremely rare”.  The judge went on to say that the imposition of a Training Centre order “…does not provide an adequate deterrent effect, both to you personally and to others who might follow your footsteps…”  Finally, the judge determined that there were no “special circumstances” justifying a departure from the imposition of an immediate custodial sentence.

Starting point

13.  In those circumstances, the judge stipulated a starting point for sentence of 5 years’ imprisonment in respect of Charge 1 and 5 years and 3 months’ imprisonment in respect of Charge 2.

Discount

14.  The judge said that he afforded the applicant a discount of one-third from that taken as the starting point taken for sentence to reflect his pleas of guilty.

Sentence

15.  In the result, the judge sentenced the applicant to 40 months’ imprisonment and 42 months’ imprisonment respectively on Charges 1 and 2.  In considering whether or not any part of the term of imprisonment imposed for one of the charges ought to be made consecutive to the sentence of imprisonment imposed in respect of the other charge, the judge acknowledged that the two offences were committed at the same place and time and that the applicant had assisted in the recovery of the property.  Accordingly, he ordered the two sentences of imprisonment to be served concurrently.

Application to treat the abandonment of his application as a nullity

16.  As noted earlier, such explanation as the applicant advances to explain why he abandoned his application for leave to appeal against sentence and seeks to have the dismissal of that application treated as a nullity is that, having been refused legal assistance, he had lost hope and was fearful that his sentence would be increased.  Now, he understood the process and wished to have his abandonment treated as a nullity.

17.  In his oral submissions today, the applicant confirmed that he had written the two affirmations he affirmed together with the attachment to Form XI in which he set out his grounds of appeal.  Also, he said that he had read and understood the respondents written submissions.  However, he asserted that he had not read the Notice of Abandonment form.  All he had done was signed it.  He did not understand its contents.  At the hearing, although he had been provided with a Nepalese interpreter, he addressed the Court directly in English.

Grounds of appeal

18.  In his initial Grounds of Appeal, attached to his Form XI filed on 4 September 2015, the applicant contended that the judge had imposed a high sentence and had failed to give sufficient consideration to the fact that he was dealing with a young first offender.

Respondent’s submissions

19.  The respondent submitted that the applicant had provided no proper reason to support his application to withdraw his notice of abandonment or explanation for why the application was made more than two months after the Notice for Leave to Appeal against Sentence was dismissed by the Court.  No evidence was put forward which was indicative of the absence of knowledge of the nature and effect of the Notice of Abandonment at the time the applicant filed it with the Court.  A mere change of mind was not a legitimate ground to treat the abandonment as a nullity.[3]

20.  Of the merits of the appeal against sentence, the respondent submitted that youth might pale into insignificance because of the magnitude or prevalence of the offence.[4] The respondent invited the Court to note that in the judgment of this Court in HKSAR v Law Ka Kit, Stock JA, said“It is also well established that extreme youth may, though it does not necessarily, constitute strong mitigation…what is extreme youth is not a matter of exact mathematics, although someone under the age of 15…falls within this category”.[5]  However, the respondent submitted that, given that the applicant was aged 20 years and 7 months at the time of the offence, he could not be considered as falling within the category of “extreme youth”.

A consideration of the submissions

The dismissal of the application for leave to appeal against sentence    

21.  There is no dispute that once an application for leave to appeal is dismissed, pursuant to Rule 39 of the Criminal Appeal Rules, Cap. 221, on the filing of a Notice of Abandonment by the applicant, this Court is not entitled to hear that application unless it can be demonstrated that the abandonment of the original application was a nullity.[6]

22.  In the judgment of this Court delivered by Ma CJHC, as Ma CJ was then, in HKSAR v Law Kam Fai [7] the issue of the test to be applied in determining whether or not an abandonment was a nullity was addressed:[8]

“ The test to be applied is that the court must be satisfied that the abandonment was not the result of a deliberate and informed decision, meaning that applicant’s mind did not go with the act of abandonment. The court does not inquire into the merits of the actual application for leave to appeal at all; nor should it until the said test has been satisfied. In other words, the outcome of an application to treat the abandonment as a nullity does not depend on the validity or cogency of the underlying application whose abandonment is sought to be nullified. How good or bad the underlying application for leave to appeal against conviction or sentence may be, this is irrelevant.”

23.  In the judgment of this Court, delivered by Kwan JA in HKSAR v Ip Wai Ho, Micky [9]the nature of this Court’s enquiry in those circumstances was addressed:[10]

“ The focus of the court’s present enquiry is the state of mind of the applicant at the time he signed the notice of abandonment.  The burden is on the applicant to persuade the court by credible evidence of facts which would satisfy the nullity test (Ooi Lim Khoon, §§14 and 16).  He would need to show that the abandonment “was not the result of a deliberate and informed decision”.  In other words, he did not intend to abandon the appeal, or did not understand the nature or effect of signing the notice of abandonment such that his mind could be said not to go with the act of abandonment (R v Bridges (1998) 104 A Crim LR 322 at 329 to 330).  The mere fact that the applicant was mistaken about the prospects of success on appeal when he signed the notice giving up the right of bringing an appeal would not suffice (Lai Siu Cheung at §26; Law Kam Fai at §45), as in such a situation the applicant knew what he was doing in signing the notice of abandonment, that he had a possible appeal to the Court of Appeal and he was expressly abandoning that possibility.

The starting point for the court will be that in most cases, persons signing an important legal document by which they throw away their possible right of appeal will be taken to be aware of what they are doing (Ooi Lim Khoon, §16).  As stated in Lai Siu Cheung at §28: “The person who, properly informed, knows what the document is that he or she is signing and who, properly informed, knows what the effect is of the document he or she is signing and, with that knowledge, deliberately signs the document, will be hard pressed to show that that act is a nullity.”  And in Law Kam Fai at §45: “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.” ”

24.  In that context, it is to be noted that the Notice of Abandonment dated 12 October 2015 filed with the Court is signed by the applicant immediately beneath the statement, “I abandon all further proceedings in regard to the appeal.”  Further, immediately beneath that signature is a statement which draws attention to Rule 39 of the Criminal Appeal Rules and its effect, namely that:

“ …on receipt by the Registrar of your notice of abandonment, your appeal is deemed to have been dismissed. The Court of Appeal has no inherent jurisdiction to permit your appeal to be reopened unless-

(a) your abandonment of the appeal is treated as a nullity; or

(b) …

3. Only in exceptional circumstances, where the Court is satisfied that the abandonment was not the result of a deliberate and informed decision will the Court treat the abandonment as a nullity.”

25.  Clearly, the effect of filing the Notice of Abandonment is stated with particularity on the form signed by the applicant.  Further, it is apparent that the applicant determined to file a Notice of Abandonment because he had failed to secure legal representation to advance his application and was concerned that the sentences might be increased.  Those statements resonate with an informed determination to file the Notice of Abandonment.  Furthermore, the applicant having demonstrated a reasonable command of English in his written and oral submissions to the Court, we do not accept that he did not understand the simple terms of the Notice of Abandonment.

26.  In the result, we are satisfied that the applicant has failed to discharge his burden to satisfy this Court by credible evidence that his abandonment of his application should be treated as a nullity.

Conclusion

27.  Accordingly, we refuse the application.

[1] Notice of Refusal of Legal Aid: 15 September 2015; 7 January 2016.

[2] R v Mo Kwong Sang [1981] HKLR 610.

[3] HKSAR v Ip Wai Ho, Micky [2015] 5 HKLRD 567.

[4] HKSAR v Law Ka Kit [2003] 2 HKC 178; page 186 E-F, paragraph 26.

[5] HKSAR v Law Ka Kit; page 186 G-H, paragraph 27.

[6] HKSAR v Lai Siu Cheung [2005] 1 HKLRD 1, paragraphs 23-4.

[7] HKSAR v Law Kam Fai [2006] 2 HKLRD 879.

[8] HKSAR v Law Kam Fai, paragraph 44.

[9] HKSAR v Ip Wai Ho, Micky [2015] 5 HKLRD 567.

[10] HKSAR v Ip Wai Ho, Micky, paragraphs 23-4.