HKSAR v. CHEUNG FU KWONG

CACC 370/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 370 OF 2004

(ON APPEAL FROM NO. DCCC 240 of 2004)

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

1.  The applicant – Cheung Fu Kwong, having been convicted after trial by Judge Chua (the judge) in the District Court on charges of keeping a vice establishment, assisting in the management of a vice establishment, and two charges of conspiracy to manage a vice establishment, was sentenced to two years and three months’ imprisonment on 2 August 2004.

2.  The judge adopted a starting point of 18 months’ imprisonment and, on the prosecution’s application, enhanced it by 50% under s 27(5) of the Organized and Serious Crimes Ordinance.

3.  On 27 August 2004, the applicant filed a notice of application for leave to appeal against sentence.  The application came before this court on 24 December 2004 and Mr John Dunn, assigned by the Director of Legal Aid, represented the applicant.

4.  Having been drawn to the decision in Secretary For Justice v Lee Cho Keung & Ors [2004] 4 HKC 179, Mr Dunn took further instructions from the applicant and then indicated that the applicant would abandon his application, which was then dismissed.

5.  On 6 January 2005, the applicant renewed his application for leave to appeal against sentence. His application was treated as an application to treat his abandonment as nullity in order to revive the application for leave to appeal against sentence.

6.  The applicant claimed, in his written submissions, that at the hearing on 24 December 2004, he was very scared and nervous. He said he gave a wrong answer to his counsel that he would not pursue his application for leave to appeal against sentence. The applicant also asked to be forgiven for the mistake he made.

7.  However, he admits before us that he did tell Mr Dunn on 24 December 2004 that he would abandon his application and the effect was that his application would be dismissed.

8.  Clearly the applicant consented to the abandonment after receiving further advise from counsel. There is no indication that the applicant’s mind did not go with the abandonment that he had made. He is just having a second thought about his earlier decision.

9.  There is simply no valid basis upon which we can allow the application to treat the abandonment as a nullity.

10.  In all the circumstances, we dismiss the application.