HKSAR v. CHAN PO PAK

CACC 543/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 543 OF 2002

(ON APPEAL FROM DCCC NO. 486 of 2002 )

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

Background

1.  The applicant, Chan Po-pak appeared before Deputy Judge Woodcock in the District Court with four others on an indictment consisting of 13 charges arising out of the false imprisonment of gamblers from Macau and the blackmailing of their family members.

2.  Three defendants pleaded guilty. The applicant and Cheng Yat-kit (Cheng) pleaded not guilty.

3.  On 9 October 2002, the applicant was convicted after trial of a charge of conspiracy to falsely imprison and two charges of conspiracy to blackmail. He was sentenced to concurrent terms of three years and ten months’ imprisonment.

4.  Cheng was also found guilty of seven charges and sentenced to a total of four years and 6 months’ imprisonment.

5.  On 30 October 2002, the applicant filed his Notice of application for leave to appeal against both conviction and sentence.

6.  On 13 February 2003 and 24 March 2003, the applicant abandoned his applications relating to sentence and conviction respectively.

7.  The applicant now seeks leave to annul his abandonment and to renew his applications for leave to appeal against conviction and sentence.

8.  In his affirmation in support of the application to annul the abandonment, the applicant said he abandoned the applications for leave to appeal because he did not get legal aid. However, Cheng was granted legal aid and had been assigned a lawyer. The applicant said he should be given equal rights to have legal aid.

9.  The applicant tells us in his oral submission that he did not know any of the co-accuseds or the victim. He also says that he did not commit the offences.

10.  The availability or otherwise of legal aid to the applicant is not a matter that primarily concerns us. The only relevant question in this application is whether the abandonment by the applicant is shown to have been the result of a deliberate and informed decision, in that his mind did not go with his act of abandonment (See R v Medway [1976] 62 Cr App R 85 as cited in HKSAR v Lai Siu Cheung Cr App No 487 of 2002).

11.  In Lai Siu Cheung,we said at paragraph 28 of the judgment the followings:

“…once an appeal has been dismissed, the court is functus unless the dismissal was itself based on an act which was a nullity; that when one asks whether an act is a nullity, it is to the act of abandonment itself that one looks; and the approach recognizes, also, that the right of appeal is conferred by statute and that there is no inherent jurisdiction to entertain the reopening of an appeal once dismissed. The person who, properly informed, knows what the document is that he or she is signing and who, properly informed, knows what the effect is of the document he or she is signing and, with that knowledge, deliberately signs the document, will be hard pressed to show that that act is a nullity…”

12.  The applicant has not established to our satisfaction that his mind did not go with his deed when he abandoned his applications. It follows that his applications relating to conviction and sentence must be dismissed.