HKSAR v. WONG TAT CHUEN

CACC 509/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 509 OF 1996

(ON APPEAL FROM HCCC 68 OF 1996)

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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. The Applicant was convicted of murder on 4 September 1996 and sentenced to life imprisonment. His appeal against conviction was dismissed on 3 April 1997.

2. On 25 January 2002, the Applicant sought leave out of time to appeal against sentence, setting out his reasons for doing so in an affirmation.

3. The application is misconceived. Murder carries only one sentence which is provided by section 2 of the Offences Against the Person Ordinance, Cap. 212. This was recently challenged in Lau Cheong and Anor v HKSAR, FACC 6/2001 (unreported). The judgment, at paragraph 164 reads:

"As the mandatory life sentence is a sentence fixed by law, there is no right of appeal solely against sentence: Criminal Procedure Ordinance, s 83G. But this produces no inconsistency with BOR art 11(4). What that article confers on persons who have been convicted of a crime is the safeguard of a second tier of judicial scrutiny. A convicted person is entitled to a review of his conviction and sentence by a higher tribunal with powers to overturn them. Such a safeguard exists in the present case. A person convicted of murder and sentenced to mandatory life imprisonment is entitled to appeal to the Court of Appeal which may, on allowing the appeal, overturn the conviction and sentence. BOR art 11(4) does not confer a separate right to launch an appeal limited to an appeal against sentence so as to prohibit sentences fixed by law. The requirements of the article are therefore satisfied by the existing procedure for appeal to the Court of Appeal."

4. This passage makes it clear that an appeal against conviction satisfies the right of a person convicted of an offence carrying a mandatory life sentence to have his conviction and sentence reviewed by a higher tribunal. There is no right to appeal in such a case solely against sentence.

5. There are, however, topics which are raised in the Applicant's leave application which, if correct, are no doubt matters for the consideration of the Long Term Prison Review Board. We are led to believe from correspondence sent to the Applicant by the Legal Aid Department that he may in due course receive some legal advice as to what his proper course should be.

6. So far as this court is concerned, we have no jurisdiction to entertain the application. Accordingly, we refuse to give leave out of time and the application is dismissed.