MA KAM SAN v. HKSAR

FAMC No. 21 of 2002

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 21 OF 2002 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 203 OF 1999)

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DETERMINATION

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Mr Justice Chan PJ:

1. In March 1999, the applicant together with two other defendants were convicted after trial in the District Court of conspiracy to commit burglary. He was sentenced to 5 years imprisonment.

2. In November 1999, the applicant applied for leave to appeal against his conviction. His application was dismissed by the Court of Appeal which also ordered loss of time for 6 months pursuant to s.83Y of the Criminal Procedure Ordinance, Cap. 221.

3. In May 2002, he applied for extension of time to apply for leave to appeal against the order for loss of time, relying on the same points of law as those argued in the Court of Final Appeal in FACC No. 2 of 2002. His application was adjourned pending judgment of the Court of Final Appeal in that other case. He was given bail pending his application.

4. Having considered the judgment of the Court of Final Appeal in FACC No. 2 of 2002 which was handed down on 4 December 2002, he indicated through counsel that he would abandon these points of law as the grounds of his present application.

5. However, he relies on the substantial and grave injustice ground alleging two points. First, he had not been given any warning of the risk of loss of time by the Court of Appeal. This is factually incorrect. From the court record, the Court of Appeal did give the warning to him. We are satisfied that the applicant had sufficient warning of the risk of proceeding with his application.

6. The second point is that since he was released on bail, he has now turned over a new leaf : he has found a new job, and obtained public housing. It would be detrimental to him in his effort to turn over a new leaf if he were to go back to prison and serve the remaining term under the order for loss of time.

7. Much as we sympathize with him, we do not think the Appeal Committee or the Court of Final Appeal has the power to interfere with the order for loss of time on this ground. In these circumstances, we refuse leave to appeal.