SIU HAI KA AND OTHERS v. R.

IN THE COURT OF APPEAL

1992, No. 159
(Criminal)

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JUDGMENT OF THE COURT

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Macdougall, V.-P.:

These are two references by the Governor which for the sake of convenience can be dealt with together.

2. Following the decision of the Privy Council in A.G. v. Lee Kwong-kut [1993] AC 951 delivered on 19 May 1993 in which it was held that section 30 of the Summary Offences Ordinance Cap 228 had been repealed by the Bill of Rights Ordinance Cap 383, an exhaustive search was conducted in all court, police and duty lawyer scherne records to identify all cases in which defendants had been convicted of offences under section 30 subsequent to the coming into operation of the Bill of Rights Ordinance.

3. That search resulted in the discovery of 364 such convictions in the Magistrates Courts and one in the District Court. The 364 persons affected by the convictions in the Magistrates Court form the subject of one of the References while the remaining person forms the subject of the other.

4. The Crown, very properly, does not seek to uphold these convictions.

5. In the light of the decision to which we have referred we order that the conviction recorded against each of the persons named in the two References be quashed and that each sentence be set aside.

IN THE COURT OF APPEAL

1991, No. 419
(Criminal)

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J U D G M E N T

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Penlington, J.A.:

6. This is the judgment of the court.

7. On the 21st August 1991 the applicant was committed on two counts of conspiracy to defraud, contrary to Common Law, and was sentenced to concurrent terms of two and four years imprisonment. He applied for leave to appeal against conviction and that application was heard from the 1st to the 10th July 1992. In a judgment delivered on the 4th September 1992 the application was refused.

8. The applicant had, in his application for leave to appeal, included an application in respect of his sentences but at the hearing of the application leading counsel on his behalf abandoned that part of the application. The applicant now seeks leave of this court for an order that the abandonment of the application for leave to appeal against sentence be treated as a nullity and he be allowed to proceed with that application.

9. The ground on which this application is made is that when he was advised by his counsel to abandon the application for leave to appeal against sentence, he was not informed that a relevant factor in mitigation of sentence had not been argued before the trial judge prior to sentence and it should have been placed before the Court of Appeal. That factor was that the applicant had, before trial, made partial restitution to the defrauded party, the Hang Lung Bank Ltd (Hang Lung) of $6.8 million and, after sentence and while still in prison, a further $5.48 million was paid. These payments were accepted by Hang Lung in full settlement of its claims against the applicant. Reliance that restitution may be a ground of mitigation is placed on R. v. Kwok Lai-ling, [1989] 1 HKLR 418.

10. The leading decision on the circumstances in which an application for leave to appeal against sentence which has been abandoned can be reinstated is Medway [1976] 62 CAR 85.

11. In Medway, Lawson J. reviewed all the earlier decisions and it is quite clear from them that there must be quite exceptional circumstances present before an appeal which has been abandoned can be re-instated. It would seem from the decisions referred to in Medway in particular those of Peters (1973) 58 CAR and 328 Wilkinson (1975) unrep., that bad legal advice may be a ground for holding that the appellant's mind had not gone with his act of abandonment. It must however be a fundamental mistake. He must be making a mistake as to his act, not as to his prospect of success.

12. The question of repayment being a mitigating factor was considered in R. v. Kwok Lai-ling. It was held that such payments were only such a factor if made before or in the early stages of criminal proceedings as showing remorse. They are not to be so considered if they were made in the hope of a reduction in sentence.

13. Having considered the evidence in this case, which this court went into fully when considering the application for leave to appeal against conviction, we are satisfied that the payments were not made out of any feelings of remorse at all. They were made at a time when the applicant was still denying that he had been guilty of fraud. It was his case at all times that be was the victim of fraud by the authorities in China. There was no suggestion that during the trial judge was not aware of the payments but it was certainly not conceded in any way that such payments showed guilt on the part of the applicant or were paid from the money which Hang Lung had lost.

14. We have read the affidavits filed herein regarding the medical condition of the applicant's wife. They are such that no court could possibly not have feelings of the very deepest sympathy for her but we are satisfied that on clear principles this application must be refused and any alteration in the applicant's sentence can only be by the Executive in exercising the Her Majesty the Queen's prerogative of mercy.