HKSAR v. CHUNG MEI LIN

CACC 248/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 248 OF 1997

(ON APPEAL FROM HCCC NO. 337 OF 1996)

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J U D G M E N T

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Wong, J.A. (giving the judgment of the Court) :

1. The Applicant was jointly indicted with her boyfriend, a man by the name of FAN Chi-keung, who was D2 at the trial for one count of unlawfully trafficking in a mixture containing 161.66 grammes of heroin hydrochloride. They appeared before Deputy Judge Hartmann (as he then was) in the Court of First Instance on 29 April 1997 when D2 pleaded guilty to the indictment. The Applicant entered a plea of not guilty at first but changed her plea to guilty after D2 had pleaded guilty and indicated that he would give evidence against the Applicant. In the result, D2 was sentenced to 7 years' imprisonment and the Applicant to 8 years. An application for leave to appeal against sentence by D2 was dismissed by this Court, differently constituted, on 7 November 1997. The Applicant also filed a notice for leave to appeal against her sentence shortly after the sentence but she abandoned it by notice dated 8 July 1997. On 14 September 1999, she lodged a notice to have her notice of abandonment treated as a nullity so as to allow her to apply for leave to appeal against sentence out of time. She gave her reasons in a written statement which she has repeated before us this morning. First, she said she abandoned her application for leave to appeal against her sentence because her application for legal aid was refused. Second, she thought that she wanted a longer period in prison to completely rid of her drug addiction. Third, she was under the influence of D2 to commit the crime and felt aggrieved that D2 received a shorter of sentence than she because D2 was, in fact, the mastermind of the crime. Fourth, she now understands that freedom is valuable and wants to be released early to look after her aged and blind mother and her daughter who has been missing for some time.

2. Both the Applicant and D2 were drug addicts of very long standing.

3. The present application to treat her notice of abandonment is made after more than 2 years and 2 months have elapsed since the abandonment. At the time she made the notice of abandonment she was fully conscious of what she was doing. In our view, the Applicant has not advanced good and sufficient reasons to support her application to treat her notice of abandonment as a nullity. Accordingly, her application is dismissed.