HKSAR v. CHUNG WING CHEONG

CACC 121/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 121 OF 2003

(ON APPEAL FROM HCCC NO. 110 OF 2002)

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J U D G M E N T

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Hon Ma CJHC (giving the judgment of the Court) :

1.      On 28 February 2003, the Applicant was convicted after a trial by jury before Deputy High Court Judge Day of a single count of attempted robbery.  The same day, he was sentenced to 12 years imprisonment.  On 26 March 2003, the Applicant filed a notice of application for leave to appeal against sentence but this was abandoned on 10 September 2003.

2.      The attempted robbery which took place on 20 December 2001 involved the Applicant and two others.  They had waited outside a flat in Shamshuipo to rob the couple who lived there.  When the door was opened, the three men (who were masked) burst in, brandishing a false gun and a chopper.  The male victim was chopped.  His girlfriend resisted and managed to escape the flat and shout for help.  The Applicant was later apprehended by the police.  The two other accomplices managed to escape.

3.      Following the abandonment of his application for leave to appeal against sentence, in early 2005, the Applicant gave assistance to the police which led to the arrest and later (on 27 March 2007) the successful prosecution of the two accomplices in the attempted robbery.  By an affirmation dated 19 April 2007, the Applicant applied to have his earlier abandonment of the application for leave to appeal against sentence, treated as a nullity.  He said this (as translated) : -

“	I had assisted the prosecution in bringing the charges against the other two defendants in the same case, therefore (they) were convicted and sentenced on 26th March 2007.
	I now make an application to the Court of Appeal of the High Court for a reduction of sentence on the above ground.  The ‘Notice of withdrawal of application for an appeal’ (is attached and should be) treated as null and void.  May leave be granted to reinstate the appeal proceedings.”

4.      On 11 June 2007, the application first came before Stuart-Moore VP.  The learned Vice President adjourned the hearing after making inquiries of the Department of Justice whether it was intended to petition the Chief Executive for a remission of sentence in light of the assistance that the Applicant had given to the authorities regarding the two accomplices.  On 14 August 2007, the Solicitor General petitioned the Chief Executive on the Applicant’s behalf.  This led to the Chief Executive remitting two years of the 12-year sentence on 18 September 2007.

5.      On 29 October 2007, Yeung JA set down the present application for hearing.

6.      The first matter to be dealt with before a consideration of the merits of any appeal against sentence is of course the application for leave to treat the earlier abandonment as a nullity.  Unless the Applicant can demonstrate that his earlier abandonment was not the result of a deliberate and informed decision, the court will not treat the abandonment as a nullity nor will it consider the merits, however compelling, of the appeal itself : see HKSAR v Law Kam Fai [2006] 2 HKLRD 879, at 893 G-J (paragraph 44).

7.      It is clear that the Applicant fully intended to abandon his application for leave to appeal at the time this was done.  He seeks in effect to obtain a further reduction of his sentence by reason of the said assistance given to the authorities.  Apart from anything else, this assistance occurred after he had abandoned his appeal.

8.      For the above reasons, the application is dismissed.