HKSAR v. LO TAK CHEONG

CACC 530/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 530 OF 2000

(ON APPEAL FROM HCCC 159, 170 & 261 OF 2000)

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J U D G M E N T

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Seagroatt J: (giving the Judgment of the Court)

1. This is an application for leave to treat as a nullity the Notice of Abandonment of an application for leave to appeal against sentence.

2. The sentence concerned was one of 12 years' imprisonment imposed by Beeson, J. on 15 December 2000 in respect of an offence of forcible detention of a person to procure a ransom and three offences of false imprisonment.

3. The application for leave to appeal against that sentence was dated 21 December 2000. More than 18 months later, on 11 July 2002, a Notice of Abandonment of his application in relation to sentence was filed. No doubt he had accepted the advice of his then counsel to the effect that "there were no properly arguable grounds of appeal against sentence".

4. In the meantime he proceeded with his application for leave to appeal against conviction which had also been filed on 21 December 2000. That application was heard by this court on the 17 January 2003 when it was dismissed, judgment being handed down on 12 February 2003. That judgment sets out the relevant details of the principal offence.

5. On the 12 March 2003, one month later, the Applicant sought to revive his application for leave to appeal against sentence. The grounds set out, such as they are, stated that he felt obliged to accept counsel's advice that he had no grounds for an appeal against sentence as he knew nothing about the law. He stated that counsel had told him that he could only represent him on the appeal against conviction if he abandoned his appeal against sentence.

6. The other feature, which is likely to have been the true basis for his attempt to revive his application, is his reference to having learned from newspaper reports that lower sentences than that passed on him had been imposed in recent cases.

7. The principles in relation to the court's jurisdiction in such applications were stated by a five-judge Divisional Court in England in R v. Medway [1976] 62 Cr. App. Rep. 85 where the criterion, then established and distilled from a number of other cases, and set out quite clearly, was that where the abandonment was not the result of a deliberate and informed decision, then a court had jurisdiction to consider it as a nullity.

8. This court restated the principle in HKSAR v. Solis Antelo Richard, CACC 537 of 1997 (unreported) and in HKSAR v. Lau Kam Keung CACC 405 of 2000 (16 April 2002), my Lord the Vice-President presiding on both occasions. The principle has remained the same since then.

9. The Applicant, who is no stranger to the criminal courts, decided to abandon his application on counsel's advice. We are satisfied that he fully understood the implications. He has sought to revive it at this stage only after his application in respect of his conviction had failed, and on the basis of lower sentences on other offenders for similar offences in other cases, which have come to his attention since.

10. Again this court has on a number of occasions indicated that where a sentence is neither wrong in principle nor obviously excessive, there is no substance for advancing an appeal on the basis that in some other case a different defendant in the circumstances of that case, received a lesser sentence. That is no proper platform for suggesting a disparity of sentence.

11. In all the circumstances we reject his application to treat the abandonment as a nullity. This application is so devoid of merit that we shall order under the terms of section 83W of the Criminal Procedure Ordinance, Cap. 221, that 3 months of the time which the Applicant has spent in custody pending this application shall not count towards his sentence.