HKSAR v. YEUNG AH LUNG

CACC 506/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 506 OF 2003

(ON APPEAL FROM DCCC NO. 775 OF 2003)

-----------------------------------

-----------------------------------

-----------------------------------

J U D G M E N T

-----------------------------------

1. This is an application for leave to appeal against sentence out of time.  

2. On 20 November 2003, the applicant was convicted following trial before Judge Line in the District Court on one charge of dealing with proceeds of crime for which he was sentenced to two years’ imprisonment and another charge of handling stolen goods for which he was sentenced to four years’ imprisonment.  The judge ordered the sentences to run concurrently, resulting in an overall sentence of four years, which was passed on the same day.

3. By a notice of application dated 24 November 2003, the applicant sought leave to appeal against conviction.  That application was dismissed by this Court on 30 April 2004. 

4. By a notice of application dated 23 June 2005, the applicant seeks leave to appeal against sentence out of time.

5. Whether indulgence should be granted for an extension of time to appeal involves a consideration of several matters, namely, (a) the length of the delay, (b) the reasons given for the delay, and (c) the prospects, if any, of the appeal succeeding.  See HKSAR v Chan Kam Po, CACC 220/2001 (2 May 2002, unreported).

6. In his notice of application dated 23 June 2005, the applicant set out his reasons for making the application.  He was arrested on 4 April 2003 by public security officers in the Mainland and had remained in custody until 30 May 2003 when police officers from Hong Kong escorted him back to Hong Kong.  This was a period of 57 days.  Ms Evena Chan, for the respondent, informed me that in fact the applicant was arrested in the Mainland on 6 April 2003 instead of 4 April, but the applicant disputes that.  The judge did not deduct this period of 57 days from the sentence.

7. However, the applicant had not mentioned any reason for the delay in lodging the application.  The applicant was convicted and sentenced on 20 November 2003 and the period of 28 days for bringing his application for leave to appeal under section 83Q(2) of the Criminal Procedure Ordinance, Cap 221, had expired on 18 December 2003.  The delay was over 17 months.  It goes without saying that the longer the delay the more satisfactory must be the explanation.  However, the only explanation now offered by the applicant is that he only knew of his right when asked by the Welfare Officer in jail why the 57 days had not been deducted from his sentence.  Moreover, the applicant had lodged an application on 24 November 2003, which was deliberately limited to seeking leave to appeal against conviction.  There is no explanation as to why he chose to so limit that application, save that he tells me he had no idea that that application merely related to his conviction until he appeared in court on that occasion. 

8. I now turn to the prospects of success of the application.  It is necessary to state the facts briefly for the purpose. 

9. Both of the charges in respect of which the applicant was convicted and sentenced stemmed from a robbery of a large quantity of central processing units (“CPUs”) that took place in Hong Kong on 6 January 2003.  The CPUs stolen were valued at $16 million.  The applicant smuggled the CPUs from Hong Kong to Shenzhen, on the instructions of another person, for a reward of $60,000.  He also assisted to effect sales of the smuggled goods by three separate transactions.  He only learned that the articles were stolen goods after the first of the three sales transactions.  He then received RMB 1.3 million in cash from that person and had the money brought back to Hong Kong to be used for a variety of purposes.

10. In his Reasons for Sentence, the judge said:

“	3.	… knowing that, you nonetheless assisted in therealisation of some two-thirds of those goods in China. It goes without saying that robbers need handlers in cases like this. If it had been the case that from the beginning the prosecution could prove that you were assisting in the handling here, I would have taken a starting point of 6 years at least, but they do not do that and I have convicted you on the basis of your own admissions – what you said about learning after the first delivery had been made in China.  That is substantial mitigation and I have reduced the starting point accordingly to one of 4 years.  I wondered whether 4½ would have been the right figure, but I have borne in mind the fact that you have got to 54 years of age without being convicted and therefore I have pitched it at 4.
	4.	But the fact is, with knowledge of the source of these goods you nonetheless assisted in their realization and the value must be roughly two-thirds of the value; it would be, therefore, in the region of $10 million worth of goods of which you assisted in therealisation.”

11. Although in his Reasons for Sentence, the judge did not mention the fact that the applicant had been detained on the Mainland for 57 days, that fact was alluded to in his Reasons for Verdict which he had delivered earlier on when he convicted on the applicant on the same day.

12. It has been decided by this Court in R v Law Yui Wo [1994] 2 HKCLR 204 that time spending in custody in a foreign jurisdiction was not generally a matter to be taken into account unless, in the discretion of the judge, it was felt that justice demanded that account be taken of it.  See also HKSAR v Lee Kwan Yee & Anor [2004] 1 HKC 462 and HKSAR v Lam Pak Lok [1997] 3 HKC 650.  

13. I am not sure whether the judge had taken into account the period that the applicant had spent in custody in the Mainland when he imposed the sentence, which means, I am not sure if he had exercised his discretion on the subject.  What I am sure of, however, is that he had considered if 4½ years or 4 years would have been the appropriate starting point.  He eventually chose 4 years because of the clear record of the applicant, which would not normally have attracted such a large discount.  In the circumstances, I am quite confident that had the judge specifically borne in mind the period of 57 days that the applicant had spent in custody in the Mainland, he would not have imposed a sentence of less than 4 years’ imprisonment.

14. Moreover, considering the large quantity and value of the stolen goods that the applicant had handled, being not less than $10 million, and the fact that he had dealt with RMB 1.3 million of the proceeds, the overall sentence of 4 years’ imprisonment, without giving credit to the 57 days, cannot be said to be in any way manifestly excessive or wrong in principle.  The chances of success of an appeal against sentence are extremely slim.

15. For these reasons, I refuse to grant leave to appeal against sentence out of time.

16. I advise the applicant that he may make a fresh application within 14 days to this Court.  However, I warn the applicant that if the court that deals with the fresh application comes to the view that it has no merit the court may order a loss of time he has spent in custody to be taken away from the counting of his service of the imprisonment, and that the court can increase sentence.