THE QUEEN v. LAU KAM

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JUDGMENT

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Macdougall, J.A.:

1. The applicant, who was convicted on 7 August last year after trial before Judge Caird in the District Court of having had in his possession 36.07 grams of a mixture containing 2.19 grams of salts of esters of morphine for the purpose of unlawful trafficking, sought leave to appeal out of time against his sentence of 3 years imprisonment.

2. In his affirmation filed in support of this application the applicant stated that he had earlier applied for leave to appeal against his conviction and that on 24 November he was notified that he had been refused legal aid. Subsequently he was advised by a firm of solicitors, whose name he did not disclose, that he should appeal out of time against sentence.

3. When we pointed out to him that it was clearly stated in the form which he completed in applying for leave to appeal against conviction that it had been fully explained to him that if he appealed against both conviction and sentence at the same time one would not have any adverse affect on the other, he replied that, although his signature appeared immediately below that advice, he had not read it clearly.

4. Being satisfied that there was no merit in the application we refused it. We then considered whether we had power under section 83W of the Criminal Procedure Ordinance to direct that the time, or part of it, during . which the applicant had been in custody pending the hearing. of the application should not be reckoned as part of the term of 3 years to which he had been sentenced, and, if so, whether we should exercise that power.

5. The relevant part of section 83W is contained in subsection(1) which reads as follows:

"83W. (1) The time during which an appellant is in custody pending the determination of his appeal shall, subject to any direction which the Court of Appeal may give to the contrary, be reckoned as part of the term of any sentence to which he is for the time being subject."

6. Although it was presumed by a differently constituted division of this court in Li Mau-lam v. The Queen [1981] HKLR 600 that it possessed this power where an application for leave to appeal out of time is refused, it has since been suggested that the existence of such power is doubtful. We therefore called on Mr Saw for the Crown to address us on this point.

7. He referred us to the definition of "appellant" in section 2 of that Ordinance which reads:

"'appellant' includes a person who has given notice of application for leave to appeal;",

 

and submitted that an applicant who applies for leave to appeal out of time is no less an appellant than a person who makes his application for leave to appeal within time. The application he makes, whether it is within time or out of time, is still an application for leave to appeal.

8. We agree. Having so decided, however, we have come to the conclusion that, since we had taken the opportunity of using this case to dispel such doubt as may have existed, we should not exercise that power against the applicant.