HKSAR v. CHAN KAM PO

CACC 220/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 220 OF 2001

(ON APPEAL FROM DCCC 350 OF 2001)

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J U D G M E N T

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Hon Woo JA (giving the judgment of the Court):

Introduction

The applicant was D3 at trial before Judge Wong in the District Court. D1 and D2 were two women at the same trial. The applicant and D1 faced the 1st and the 2nd charges, while D2 only faced the 2nd charge. Each of the charges was a conspiracy to defraud. The fraud is generally known as street fraud perpetrated on elderly ladies to cause them to part with their money and valuables by preying on their superstition and their concern for the interest and welfare of their family members. While the scheme of the conspiracy was the same, each charge related to a different victim. On 15 June 2001, the Judge convicted the defendants on their own pleas and sentenced them.

2. Leave to appeal against sentence having been granted by Cheung JA on 5 October 2001, D1 and D2 appealed. This Court allowed the appeals, reducing the sentence in respect of D2 on the 2nd charge from 2 years and 8 months' imprisonment to one of 2 years' imprisonment and reducing the sentences for D1 on both charges from a total of 3 years and 4 months to a total of 2 years and 8 months' imprisonment. The details of the circumstances surrounding the offences, the prevalence of the offence and the reasons for our decision are set out in our judgment under the same criminal appeal number delivered on 29 November 2001.

Delay in seeking leave to appeal

3. Unlike D1 and D2, who brought their applications for leave to appeal against sentence within the 28 day period under s 83Q(2) of the Criminal Procedure Ordinance, Cap 221 this applicant first brought his application out of time on 27 December 2001. That was almost five months after the expiry of the time allowed for giving the required notice.

4. We bear in mind that whether indulgence should be granted for an extension of time to appeal involves a consideration of several matters, namely, (a) the length of the delay, (b) the reasons given for the delay, and (c) the prospects, if any, of the appeal succeeding. See R v Wong Kai-kong & Anr Cr App 332/89 (unreported), R v Lee On-kei Cr App 359/94 (unreported) and Wu Chun-piu v The Queen [1996] 1 WLR 1113.

5. The explanation given by the applicant is that after he was sentenced, he felt his sentences were too heavy and wished to apply for leave to appeal. He was too poor to retain a lawyer for this purpose and he could not obtain financial assistance from his relatives on the Mainland. He also feared that without legal representation, an appeal conducted by himself might bring adverse effect on him, namely, that the sentence might be increased. It was not until he learned of the success of D1 and D2 that he lodged his application and it was never his intention to delay the matter.

Merit of the application

6. The three defendants were all in their thirties and similarly two-way permit holders from the Mainland who committed the offences whilst in Hong Kong. Although the role played by each of the defendants in the conspiracy was different, we cannot find any valid distinction in the criminality of their respective acts. In the circumstances, what we have said in our judgement of 29 November 2001 regarding the sentences for D1 and D2 must apply similarly to D3, the applicant in this case.

7. Although the delay was almost for 5 months and the reasons for the delay in making the application for leave out of time are not impressive, in view of the fact that we reduced the sentences for D1 and D2 in our decision on 29 November 2001 and that the reasoning for allowing the appeals of D1 and D2 must likewise apply to the sentences imposed on D3, this application would inevitably succeed, save for the time aspect.

Conclusion

8. In all the circumstances, we consider that this is a proper case for us to exercise our discretion to extend the time for D3 to make his application. We grant leave to him to appeal out of time and treating the application for leave to appeal out of time as the appeal, similar to the case regarding D1, we reduce his sentence on the 1st charge from one of 2 years and 8 months to 2 years' imprisonment and his sentence on the 2nd charge from one of 2 years and 8 months to a term of 2 years. We order that 8 months of the sentence for the 2nd charge shall run consecutively to that for the 1st charge, making the sentences in total 2 years and 8 months' imprisonment. To this extent, the appeal succeeds.