HKSAR v. TAM KA YIN

CACC 316/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 316 OF 2001

(ON APPEAL FROM HCCC 341 OF 2000)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 4 June 2001, the Applicant, aged 38, pleaded guilty in the Court of First Instance before Deputy Judge Toh to a single count of manufacturing heroin hydrochloride for which he was sentenced to 12 years' imprisonment on 7 August 2001. On 27 August 2001, the Applicant filed a Notice applying for leave to appeal against his sentence. However, on 13 November 2001, the Applicant filed a Notice of Abandonment and, on the following day, his application was marked as having been dismissed.

2. More than a year later, the Applicant filed an affirmation, dated 29 November 2002, in which he indicated that he wished to appeal against his sentence on grounds which were set out in that document and in a subsequent letter dated 17 January 2003. In effect, the Applicant makes the point in these written submissions that when he abandoned his original application he was ignorant of the law but, having served a year in prison, he has learnt more about the subject. In particular, it is the Applicant's belief that he has been given an insufficient discount bearing in mind the discount given to others in a similar position to himself and, furthermore, that the judge failed to draw a distinction between the first defendant in his case, who was his boss, and himself as the first defendant's employee. This appears to be his motivation for inviting this Court to treat the abandonment of his application for leave to appeal against sentence as a nullity which is the reason the matter now comes before us.

3. The Applicant's affirmation has almost no credibility. He has eight previous convictions and, in this sense, he appears to have been well versed in the law. Amongst these, he was sentenced to 31/2 years' imprisonment in 1995 for possessing dangerous drugs. On no less than three occasions, the Applicant has been sent to the Drug Addiction Treatment Centre, and he has served one other prison sentence apart from the one to which we have already referred. Aside from these considerations, the Applicant has not put forward any basis at all for treating the abandonment as a nullity (see R v. Medway [1976] QB 779). It is quite plain to us that the Applicant's abandonment of his earlier application was the result of a deliberate and informed decision.

4. The present case revealed facts which showed that the offence concerned a well-established manufacturing enterprise at premises which were rented by the Applicant and where he had been living with the first defendant. The Applicant was rightly given an enhanced discount as the result of his offer to give evidence against his co-defendant who then pleaded guilty.

5. This application is dismissed.