HKSAR v. AU CHUN WAI

CACC 437/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 437 OF 2004

(ON APPEAL FROM DCCC NO. 922 of 2004)

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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 30 September 2004, the applicant pleaded guilty before Judge Barnes in the District Court to six offences, all of which were related to the fraudulent use of credit cards.  The applicant received a sentence of 3½ years’ imprisonment in total, to be served consecutively to the 12-month term he was already serving.

2.  The applicant sought leave to appeal against sentence.  However, on 6 December 2004, the application was formally dismissed after the applicant had served a notice of abandonment.

3.  Some seventeen months later, the applicant sought the leave of this court to treat his abandonment of the application for leave to appeal as a nullity.  He set out his reasons, in an affirmation dated 8 May 2006, in the following way:

“… On 6^th December, 2004, I gave up the application in respect of my appeal against sentence in DCCC 922/2004 [Criminal Appeal Case No. CACC 437/2004], because at the time the Legal Aid Department did not grant its approval for counsel to assist me.  Being a person with hardly any legal knowledge, and as there was no counsel to provide help through analysis and explanation, I considered that the chance of (a successful) appeal against sentence was very slim.  Moreover I was facing trial on another case.  Hence it was in a state of helplessness that I made (the decision to) cancel my application in respect of an appeal against sentence.  It is my hope, therefore, that Your Honour and the Legal Aid Department could give me another chance to lodge an appeal against sentence.”

4.  Plainly, from the terms of the affirmation, the applicant was well aware of the nature and effect of the document he was signing when he abandoned his original application.  A mistake, or more often a perceived mistake, as to the prospects of success on appeal does not make the act of abandonment a nullity.  (See: HKSAR v Lai Siu-cheung [2005] 1 HKLRD 1 at 11-12).

5.  There is no basis for treating the abandonment as a nullity.  The application is, therefore, dismissed.