THE QUEEN v. CHOI MAN

Headnote

Applicants should apply for leave to appeal against both conviction and sentence at the same time : and they should comply with the advice contained in the Acknowledgement of Refusal of Legal Aid Form.

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JUDGMENT

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Silke, V.-P.:

1. This is the judgment of the Court.

2. The applicant, Choi Man, was convicted after trial before His Honour Judge Longley for the offence of robbery. He had pleaded guilty at the same trial to two other offences, one of burglary and one of an attempted burglary. He was sentenced to a period of 4 1/2 years in respect to the robbery, three years in respect to the burglary and three years in respect to the attempted burglary. All these sentences were made to run concurrently, giving a totality of 4 1/2 years' imprisonment.

3. On the 13th June 1991, he filed an application for leave to appeal against conviction on the robbery charge. His subsequent application for Legal Aid was refused. On the 13th August 1991, he abandoned that application.

4. On the 3rd September 1991 he filed an application for leave to appeal against his sentence out of time. In the affirmation grounding that application he said : "I hereby submit an appeal against sentence out of time because I was notified by the Legal Aid Department recently that I would not be assigned a counsel. Feeling aggreived with the sentence, I would like to submit an appeal and apply for Legal Aid."

5. When the matter came on for hearing today, the applicant asked for an adjournment on the basis that he wished, and was making attempts, to engage private legal representation. His family had apparently collected some money but not sufficient. Having heard that which the applicant had to say to us, we refused the application for an adjournment.

6. In relation to the application for leave out of time, we note that at the time the application in respect to conviction was signed the applicant had acknowledged that it had been explained to him, if he appealed against both conviction and sentence at the same time, that one would not have an adverse effect upon the other. He did not, however, consider it then necessary to appeal against the sentence.

7. Having filed the application for leave to appeal against sentence out of time, he also applied for Legal Aid. That application was refused. On the 28th October 1991, the applicant acknowledged that refusal and he further acknowledged that, should he want to engage private representation, he must write to the Registrar of the Supreme Court within 14 days of the receipt of the notice of refusal - here 14 days from the 28th of October. If he did that, he was informed that the listing of this matter would be deferred for at least one further month to allow him to take that course. This, with other advice, is all contained in the form he signed. He did not see fit to write that letter and had made no application for an adjournment until the hearing this morning.

8. We have considered the facts of the robbery which were, very briefly, that two men, one the applicant, broke into the house of an elderly man while that man was asleep. They covered his head with a blanket and then held him down and hit him on his face causing considerable bleeding. The various matters set out in the charge, a wallet containing $22,000, a Canadian $50 currency note, a Canadian working permit and the Hong Kong Identity Card and a ball pen, were stolen.

9. Both the burglary and the attempted burglary, to which the applicant had pleaded guilty at trial, were invasions of private premises. In one the mesh of a mosquito screen on a kitchen window was ripped and a wallet stolen. The other was very similar but he was disturbed before he could actually enter the premises.

10. We considered the evidence lest we should, by refusing leave to appeal against sentence out of time, be shutting out a meritorious appeal. We consider the global sentence here was very much on the lenient side. The robbery was a bad one and it alone would have a merited a sentence after trial in excess of the totality of 4 1/2 years.

11. We are further influenced in considering the out of time application by the fact that the applicant has not seen fit to lodge his application for leave on sentence until a very considerable time after the period for so doing had expired. In relation to the adjournment application we note that he did not see fit to take the course suggested to him in the form acknowledging refusal of Legal Aid. Had that course been followed then the listing could have been deferred and the matter might well not have been listed, as it has been, for today.

12. It is necessary that applicants who have been refused Legal Aid be fully aware that this court is unlikely to grant requests for adjournments of this nature made, for the first time, at hearing of the application itself. To do so means adjourning the hearing and replacing it in the lists at another time. This acts to the detriment of others whose appeals have been properly brought and which are delayed because of the relisting.

13. For the reasons given we have no hesitation in refusing the application for leave to appeal against sentence out of time.

14. There was no merit in the application. That being so we direct that three months of the period between the filing of the application and today do not count towards sentence.