HKSAR v. WILLIAM COLE

CACC 488/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 488 OF 2005

(ON APPEAL FROM DCCC NO. 533 OF 2005)

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J U D G M E N T

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Hon Stock JA:

1. In this application for leave to appeal against conviction and sentence, I have raised a point in relation to conviction which is whether the charge was or was not duplicitous.  The respondent was notified of this point and I have received a note in response from Ms Leung, copied of course to the applicant, dated 16 February 2006 in respect of which Ms Leung has developed submissions this morning.  

2. The question is whether this was a single criminal transaction against the same victim, as is envisaged by the cases cited in Barton to which Ms Leung has helpfully drawn the court’s attention.  It may well be that the concern that I have raised is misplaced but I feel duty bound to have the matter looked into and argued and I have been informed today by Ms Leung and by the applicant that the argument was raised in the court below.  Apparently the court below ruled against that submission and I direct that a transcript of that ruling should be prepared and placed in the appeal bundle.  In the circumstances, I will grant leave to the applicant to appeal against conviction and I will also grant the applicant legal aid for the purposes of pursuing that appeal.  In relation to conviction, the applicant sought to canvass before me a number of other matters, the duplicity question aside.  He may draw these to the attention of the Legal Aid authority for advice as to whether they merit inclusion in the grounds of appeal.

3. I do not grant leave or legal aid in relation to the application for leave to appeal against sentence.  That application is refused, but it is open to the applicant if he wishes to renew that application to be heard by a full court when it hears the appeal against sentence.  If he wishes to renew that application he must do so within 14 days.