HKSAR v. CHOI HUNG

CAC C 225/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 225 OF 2010

(ON APPEAL FROM HCCC NO. 148 OF 2010)

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

1. In May 2010 the applicant was committed to the Court of First Instance for sentence upon his plea of guilty to 2 charges of robbery. In June 2010 he was sentenced by Mackintosh J to a total of 5 years and 6 months’ imprisonment. He applied for leave to appeal the sentence but that application was dismissed by this Court on 20 January 2011.

2. In October 2011 the applicant filed a notice of application to appeal against conviction out of time.  He does not explain why he is out of time.  For that reason alone his application falls to be dismissed but we shall nonetheless say something about the merits.

3. He suggests that the sentencing judge said that he had committed the offence of conspiracy to rob.  It is unclear to us what in those circumstances he is asking the court to do: whether to allow the appeal against conviction or to substitute a conviction for a different offence from the one to which he pleaded guilty.

4. Be that as it may, there nothing in the point. In reciting the history of the matter prior to the actual commission of the robberies, in which robberies the applicant took a proactive part, the judge said that the applicant had agreed to commit the robberies.  There was no suggestion made that the applicant had merely conspired but not committed the robberies themselves.  In dealing with another defendant, but not this applicant, the judge did make some reference to a conspiracy but that reference was of no relevance to this applicant.  In addressing us today it would seem that in effect this is a renewal of the application in relation to sentence, the applicant clearly admitting in the course of his oral submissions to us that he took part in the robberies. 

5. Both because this application is unjustifiably out of time and on the merits as well, the application is dismissed.