HKSAR v. LAU KONG KEUNG

CACC204/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 204 OF 2005

(ON APPEAL FROM DCCC 878 OF 2004)

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J U D G M E N T

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Hon Lunn J (giving judgment of the Court) :

1. On 20 April 2005, on being re-arraigned during the prosecution case, the applicant was convicted on his pleas of guilty by Deputy Judge Browne in the District Court of two offences of claiming to be a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap.151, and one charge of blackmail, contrary to section 23(1) and (3) of the Theft Ordinance, Cap.210.  The offences occurred over a period of three days in January 2004 and arose out of the applicant's attempts to obtain “protection money” from a restaurant in Wanchai.  On 21 April 2005, the judge sentenced the applicant to 10 months' imprisonment on each of the charges of claiming to be a member of a triad society and 40 months' imprisonment on the charge of blackmail.  All the sentences were ordered to be served concurrently, making a total sentence of imprisonment of 40 months.

2. By a notice of application for leave to appeal dated 10 May 2005, the applicant sought leave to appeal against the sentences imposed upon him and informed the court that he was seeking the grant of legal aid.  The grounds of appeal against sentence accompanying the notice state :

“I think that the judge didn't consider my personal background and nor did he seriously consider that I pleaded guilty sincerely.  It is too harsh for him to take five years as a starting point for sentence.”

3. On 13 June 2005 the applicant's application for legal aid was refused.  On 17 June 2005 the applicant filed a notice of abandonment of his application for leave to appeal against sentence.

4. By an affirmation dated 3 May 2006, the applicant seeks leave to have his abandonment of his application for leave to appeal against sentence treated as a nullity.  Amongst the reasons advanced in his affirmation to explain his abandonment of his earlier application the applicant states that :

“1) I could not find sufficient grounds.

2) The Legal Aid Department did not assign any lawyer to me.”

Of his current position, he asserts :

“5. Now, I've found cases of similar nature having a lower starting point with a more lenient sentence than mine.”

5. The grounds advanced by the applicant for treating his abandonment of his application for leave to appeal against sentence as a nullity are misconceived.  Clearly, the applicant was fully aware of the nature of the document he signed when he abandoned his original application and he was aware of its effect.

6. In HKSAR v. Lai Siu Cheung [2005] 1 HKLRD 1, Stock JA, in the judgment of a differently constituted division of this court, observed of the issue of whether or not an abandonment of an application was a nullity that (page 13A-B) :

“… 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 show that that act is a nullity.”

7. There is no ground in this case to treat the abandonment as a nullity and, accordingly, this application is dismissed.