R. v. WONG SHAN

Headnote

Criminal Procedure (Representation) Rules Cap. 221 to be observed: ad misericordiam plea rejected on application for leave to appeal against sentence out of time.

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

J U D G M E N T

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

Silke, V.-P.:

1. This is the judgment of the court.

2. The applicant, Wong Shan, was convicted on 28th August 1990 together with another person of conspiracy to defraud. The conspiracy seemed to have been what has now become the routine "Renminbi scam". He sought leave to appeal against that conviction and his application was refused on 17th September 1991. The Reasons for that refusal were handed down on 25th September 1991.

3. At the time of conviction he received a sentence of 3 years imprisonment. He did not see fit to make any application in respect of that sentence within the time limit provided. On 12th October 1991 he swore an affidavit, which was filed in this court on 14th October 1991, grounding an application seeking leave to appeal against sentence out of time. The basis of that application was that he had received messages from his family saying that his father's health condition was degenerating seriously, that he was the only person who could take care of and financially support his father and that he desired to fulfil his filial duty to see his father for the last time. Attached were a number of photostats of medical reports relating to the condition of his father's health.

4. The matter was set down for hearing today and, somewhat to the surprise of the court, the applicant this morning had the benefit of being represented by Miss Chan on the instruction of J. Fang & Co. No Notice to Act had been filed. The attention generally of solicitors is drawn to the Criminal Procedure (Representation) Rules which appear in Cap. 221 at page H1 which in its rule 2 reads:

"2. A solicitor who accepts instructions to represent a party other than the Crown in any proceedings in the criminal jurisdiction of the Court of Appeal or the High Court shall forthwith give notice of his appointment to the Registrar in accordance with the form in the Schedule." (Emphasis supplied)

Those rules were not observed. We have however received an undertaking through counsel that the solicitors will, forthwith, file a Notice to Act.

5. Again Miss Chan takes the ad misericordiam point. She does not suggest that the sentence itself was in any way wrong or excessive. She has referred us to three cases. The first: R. v. Roe [1982] Crim L R 57 where the English Court of Appeal, for a 18 year old who had received after a plea of guilty to assault with intent to rob a sentence of 3 years imprisonment, reduced that sentence, though it thought that to be undoubtedly right in principle for an offence of that gravity. This reduction was the result of a report from the prison on the manner in which the applicant had conducted himself during the period of the sentence which he had served up to then. There is, however, attached to that report a Commentary which has trenchantly criticised the action taken by the court referring to the possibility of this type of interference with sentence creating "inexplicable disparities, weakening the authority of the Court of Appeal and seriously interfering with its functioning".

6. Miss Chan has also referred us to a passage in the Principles of Sentencing 2nd Edition by D.A. Thomas where, at page 212, Mr. Thomas speaks of the general principle that hardship to wife and family of a convict cannot be one of the factors which would affect what would otherwise be the right sentence. Mr. Thomas went on to suggest that there were three recognisable exceptions to that general principle, though none is automatically applied. Family hardship, he said, may be a ground for mitigation of the sentence where the particular circumstances of the family are such that the degree of hardship is exceptional, and considerably more severe than the deprivation suffered by a family in normal circumstances as a result of imprisonment. In the footnote there is mention of a case entitled Renker which was decided on 29th June 1976 and carried a reference 2266/A/76. There the court while it held the sentence to be a perfectly fair and proper sentence for burglary - what that sentence was, and how much had been served, we do not know - reduced it to enable the appellant to spend time with son dying of leukaemia.

7. She has also referred us to R. v. Thomas [1983] Crim L R 493, but that is not a matter which particularly assists us.

8. It must be borne in mind that this application is an application for leave to appeal against sentence out of time. In viewing such application a court certainly will look to the merits of the appeal and the grounds of appeal lest by refusing leave it excludes a matter which should lie for consideration of the court.

9. We have listened to that which Miss Chan has said to us and noted the points she has made and seen, although they are not properly before us - Mr. Bruce taking no point on this - certain recent medical reports in relation to the father. There is no indication of the father's life expectancy though he is a 65 year old man with liver cancer.

10. We also bore in mind the period of the sentence of 3 years which leaves, subject to behaviour, something like 4 1/2 months now to run. There was nothing wrong or in any way excessive in the actual sentence passed; if anything it was a lenient one for this type of conspiracy which is becoming prevalent, but, leaving that aside and having given consideration to the arguments adduced to us today, we are not persuaded that this is a case in which we should give leave out of time on the basis of an ad misericordiam plea. Therefore, we would refuse the application for leave to appeal out of time against sentence.