HKSAR v. CHAN KWOK MING

CACC 519/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 519 OF 2005

(ON APPEAL FROM DCCC NO. 429 OF 2005)

______________________

______________________

______________________

J U D G M E N T

______________________

Hon Ma CJHC (giving the judgment of the Court) :

1.  On 6 December 2005, the Applicant was convicted in the District Court before HH Judge Mary Yuen of three charges of obtaining property by deception.  He was tried together with two other Defendants (the Applicant was the 3rd Defendant at trial).  The 1st Defendant (D1), Ng Pui Ling, Akina, was convicted of seven charges of obtaining property by deception and one charge of possession of an identity card that belonged to another person.  The three charges of which the Applicant was convicted were joint charges with D1.  The 2nd Defendant faced only one charge of handling of stolen goods but was acquitted.  All three Defendants had pleaded not guilty.

2.  The three charges faced by the Applicant related to the use by him and D1 of fake credit cards to acquire goods (in each case mobile telephones).  The other deception charges of which D1 was convicted also related to the use of fake credit cards to acquire goods.

3.  Following their conviction, D1 was sentenced on 9 December 2005 to a total of 57 months’ imprisonment for the eight charges (partially current and consecutive sentences).  The Applicant was sentenced to a total of 42 months’ imprisonment for the three charges he faced (again partially current and consecutive).

4.  On 14 December 2005, D1 applied for leave to appeal against sentence.  On 17 December 2005, the Applicant applied for leave to appeal against conviction and sentence.  On 13 February 2006, the Applicant’s application for legal aid was refused.  On 19 June 2006, he filed a notice of abandonment and his applications for leave to appeal against conviction and sentence were accordingly dismissed.

5.  It is that abandonment that the Applicant now applies to this court for an order that it should be treated as a nullity and that he should therefore be allowed to apply for leave to appeal against sentence (he has only recently indicated he does not wish in any event to apply for leave to appeal against conviction).

6.  The application to treat the abandonment as a nullity was made in an affidavit dated 17 April 2007.  The reason why the Applicant now seeks an opportunity to apply for leave to appeal against sentence is that D1 continued with her application for leave and was successful.  The Court of Appeal, in a judgment dated 21 December 2006, reduced her overall sentence from 57 months’ imprisonment to one of 45 months (see HKSAR v Ng Pui Ling, Akina, unreported, CACC 519/2005, 21 December 2006).  So, the Applicant argues, he too should get an overall reduction in the sentence that was imposed on him.

7.  The merits of his application for leave to appeal against sentence cannot however be considered unless his earlier abandonment of the application for leave is treated as a nullity.  Here, before doing so, the court has to be satisfied that the abandonment was not the result of a deliberate and informed decision; in other words, that the Applicant’s mind did not go with the act of abandonment :  see HKSAR v Lai Siu Cheung [2005] 1 HKLRD 1.

8.  In the present case, the Applicant says this in his affidavit (as translated) : -

“

As soon as the sentence was passed, I requested to file an application for leave to appeal against conviction and against sentence.  The Legal Aid Department and the Bar Association assessed my request.  They were both of the view that grounds were lacking in my appeal and so they were not in a position to represent me to deal with my appeal.  In the middle of 2006, I chose to withdraw my appeal application only because I could not find a legal representative to argue for me in the appeal and because I did not want to waste the public money in the Court of Appeal.”

In a written submission dated 26 July 2007, he adds : -

“

I was not able to find suitable grounds and previous cases to support my appeal.  Also, there was no lawyers available to offer me legal advice and help for the processing of the appeal/defence.  Because of the above reasons, I did not want to waste public money of the Court and therefore abandoned the appeal.”

9.  None of this satisfies the requisite test.  Admittedly, the absence of legal aid or assistance for the purposes of an appeal may have influenced the Applicant in the abandonment but it is clear that he knew exactly what he was doing and also the consequences of his act when he abandoned.

10.  For the above reasons, the application for an order to treat the earlier abandonment as a nullity is dismissed.