HKSAR v. LI WEI QUAN

CACC 542/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 542 OF 1999

(ON APPEAL FROM DCCC 796/1999)

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J U D G M E N T

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Leong JA (giving the judgment of the Court):

1. On 11 October 1999, the applicant pleaded guilty in the District Court before H. H. Judge Sweeney to one count of obtaining property by deception. He was sentenced to 3 years and 4 months imprisonment. The victim in this offence was a lady and she was on her way to the market when the applicant approached her and said his car had broken down. The victim offered her assistance to take the applicant to the nearest garage. On the way, the applicant told the victim he had some valuable computer components which could solve the Y2K problem. Thereafter an unknown person approached the applicant and after that person saw a sample of the components, that person offered to buy from the applicant at HK$300 per unit. Then, a second unknown person approached the applicant who after seeing the sample, offered to buy 5,000 pieces of the components at $500 per piece. The first unknown person then persuaded the victim to join with him to buy the components from the applicant and to resell them to the second unknown person and the victim agreed. The applicant and the victim and the first unknown person then had tea together during which the applicant agreed to sell to them 4,000 pieces. The applicant then persuaded the victim to withdraw money from her bank account for payment of the purchase price. As a result, the victim went with the applicant to the bank and withdrew $700,000. The applicant then went away with the first unknown person and came back with a plastic bag containing 4,000 pieces of the components which he handed to the victim. The victim paid over the sum of $700,000 to the applicant. The applicant then disappeared. The second unknown person was also nowhere to be seen. The components were found to be of low value and could not solve the Y2K problem. These unknown persons were without doubt actors collaborating with the applicant in this scam.

2. The Judge was told at the time of sentencing that this type of offence had become very prevalent and he considered that the applicant had taken advantage of woman victims who had too much money and too little sense. He also considered that the applicant was the main actor who drew the victim into the net and co-ordinated other actors.

3. On 11 October 1999, the applicant gave notice of appeal against sentence, but on 20 December 1999, he gave notice of abandonment of his appeal. On 20 March 2000, he wrote to the court stating that he was willing to inform against the other offenders at large, if in doing so his sentence could be reduced. The Registrar of the High Court informed him that he could apply to treat the abandonment as a nullity and apply for leave to appeal against sentence out of time.

4. As a result, on 17 April 2000 the applicant gave notice of appeal against sentence out of time. No ground of appeal had been set out in his notice of appeal.

5. Today, he indicated to this court that he was remorseful. But on the reasons he abandoned his notice of appeal on last occasion, he said he was then confused. The basis of the applicant's application to treat his abandonment notice as a nullity appears to be that he wishes to give evidence or to give information about those involved in this scam who are now at large in return for a reduction of his sentence. But apart from having written to the police, the applicant had not done anything of assistance to the police.

6. The test which the court will grant an application to treat as a nullity an abandonment of appeal is that set down in R v Medway 62 Cr. App. R. (1979) 85 and that is that the court must be satisfied that "the abandonment was not the result of a deliberate and informed decision, in other words that the mind of the applicant did not go with his act of abandonment". We are satisfied that there is no basis to treat his abandonment as a nullity.

7. His attention to give information which may enable those culprits at large to be captured does not take his application any further. He has not given assistance to the police nor can it be ascertained if he will be able to provide such information. As has been said many times in the authorities, a mere intention to assist the police is of no assistance and a promise to give evidence should not be given any credit.

8. We are satisfied that there is no merit whatsoever in this application. The application is dismissed and we order that 4 months of the time which the applicant has spent in custody shall not count as a part of his sentence.