HKSAR v. MOHD SYAFIQ BIN MANSOR

CACC 188/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO CACC 188 OF 2010

(ON APPEAL FROM DCCC 374 OF 2010)

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BETWEEN

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J U D G M E N T

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Hon Beeson J (giving the judgment of the court):

1.  On 16 February 2012 we dismissed an application by the applicant to treat his earlier abandonment of his appeal against sentence as a nullity. We advised him that we would hand down our written reasons for doing so; these are our reasons.

2.  The applicant pleaded guilty in the District Court before District Judge E Toh on 11 May 2010, to 11 charges of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap 200; one charge of attempting to use a false instrument, contrary to sections 73 and 159G(1) of the Crimes Ordinance, Cap 200 and one charge of possessing false instruments, contrary to section 75(1) of the Crimes Ordinance, Cap 200.  On Charges 7 to 12 the applicant was jointly charged with a co-accused.  The applicant was legally represented at trial and the judge in assessing sentence appears to have taken all relevant factors into account.  The judge adopted an overall starting point of 6 years and the applicant was sentenced to 4 years’ imprisonment on each charge, all sentences to run concurrently.

Facts of case

3.  The charges related to credit card fraud committed by the applicant and his co-defendant, who are Malaysian citizens.  They entered Hong Kong and were arrested two days later after an unsuccessful transaction to purchase goods using a forged credit card.  The applicant was found in possession of 16 forged credit cards and his co-accused had 14 forged credit cards. While in Hong Kong the applicant made five purchases at different shops using forged credit cards and with his co-accused made five further purchases.  The total value of the goods obtained on Charges 1 to 5 was $8,848.70 and on Charges 7 to 11 $23,673.90.  The forged cards differed from genuine cards in terms of printing, design details of the holograms and the brand mark.

Appeal proceedings

4.  The applicant filed a Notice of Appeal against sentence on 2 June 2010.  His application for Legal Aid was refused on 29 July 2010.  On 22 November 2010 a Notice of Abandonment was filed in respect of the appeal and on 23 November 2010 his application for leave to appeal against sentence was dismissed.

5.  On 20 July 2011, eight months after that dismissal, the applicant filed an affirmation in support of an application to treat the Notice of Abandonment as a nullity.  The applicant stated in his affirmation that he had chosen to abandon his appeal because he had been refused legal aid; he considered that he “had not much” grounds or proper knowledge to pursue his appeal without legal aid.  No claim was made that he was unaware of what he had signed, nor did he suggest that he did not know what he was doing when he signed the Notice of Abandonment.

Effect of abandonment

6.  The effect of abandonment is that an appeal is dismissed and the Court of Appeal is functus officio.  The court could only revive its jurisdiction if it decided that the abandonment was a nullity and set it aside.

7.  The focus is on whether the applicant knew the nature and effect of the Notice of Abandonment.  The court has to be satisfied that the abandonment was not the result of a deliberate and informed decision.

8.  When an applicant acted on erroneous legal advice the abandonment could be considered a nullity only if such advice related to the act of abandonment, but not to the merits of the appeal.  The applicant, who was represented on plea and sentence, made no complaint about erroneous advice.

Legal considerations

9.  The legal principles relevant to an application to nullify an abandonment are set out in HKSAR v Law Kam Fai [2006] 2 HKLRD 879.  The merits of any underlying leave to appeal against conviction or sentence are not relevant. The court does not enquire into the merits of the application for leave to appeal at all and should not do so until the nullity has been established.

10.  The Court of Appeal revisited the precedent cases and reaffirmed the relevant legal principles in HKSAR v Ooi Lim Khoon [2011] 5 HKLRD 879.  The burden falls on the applicant to provide credible evidence of facts such as that he was not aware he was signing a Notice of Abandonment.

11.  The court must 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 effect of the Notice of Abandonment that he was signing.  The greater the delay between the filing of the Notice of Abandonment and the application to nullify the abandonment, the harder it might be for an applicant to establish that he was not simply having second thoughts about the merits of his appeal.  Here the delay was substantial.

12.  In his affirmation of 20 July 2011, the applicant stated that the main ground of his appeal against sentence would be that another defendant, in a different case, received a lesser sentence than he had, although the number of the forged cards and the value of goods obtained were roughly similar.  There is nothing in the affirmation which shows that the applicant was not aware of what he signed when he abandoned his appeal.  Nor does it appear that his mind did not go with the effect of the Notice of Abandonment that he signed.

13.  Before us the applicant appeared in person and advised that he relied on the matters set out in his affirmation.  He added that since filing his affirmation he had learned of a further case (the case number of which he did not know) involving similar facts and a defendant who was roughly his age, in which a more lenient sentence had been imposed.

14.  In answer to questions from the court he confirmed that:

(a)   he understood that in Hong Kong judges would consider previous cases to calculate a proper sentence;

(b)   he understood not all defendants would receive the same sentence for the same crime;

(c)   he understood that the value of mitigatory factors might differ according to individual defendants.

Conclusion

15.  The applicant had not given any cogent explanation, whether in his affirmation or before this court, which in any measure satisfied the nullity test.  There was no claim that he did not know what he was signing, or that his mind did not go with his act of abandonment.  This application appears to have been made mainly because of the applicant’s belief that in a comparable case or cases that another defendant, or defendants, had received a lesser sentence, or sentences.  That does not justify his being permitted to treat his abandonment as a nullity.

16.  Accordingly, the application to treat the Notice of Abandonment as a nullity was dismissed.