HKSAR v. WONG YUET YEE

CACC 157/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 157 OF 2000

(ON APPEAL FROM DCCC NO. 988 OF 1999)

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J U D G M E N T

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Wong JA: (giving the judgment of the court)

1. On 28 March 2000, the applicant who was D1 at the trial together with another man, D2, pleaded guilty before Judge Davies in the District Court to eight charges of causing to be made false representations to an immigration officer lawfully acting under or in the execution of Part III (extension of stay) of the Immigration Ordinance, contrary to s.42(1)(a) of the Immigration Ordinance, Cap. 115. Two other similar charges were left on the court file. She was sentenced to concurrent sentences of 18 months' imprisonment.

2. The admitted facts were this :

"The Applicant was helping to operate an employment agency. Immigration officers raided the agency in August 1999 and a search uncovered a notebook containing details of Hong Kong residents and Filipinas connected with false employment contracts. The Applicant and D2 as a result were arrested and detained.

The Applicant admitted fixing up false employment contracts for a number of Filipina domestic helpers between September 1998 and April 1999. She had asked other persons to act as bogus employers and paid each between $800 and $3,300 for each transaction. She herself charged each domestic helper between $3,000 and $10,000. D2 was introduced to the Applicant by a person called "Lok Lam", as a potential bogus employer. D2 admitted that not only did he act as a bogus employer himself on two occasions, but that he had arranged for some of his family members to do so also, for which he and they were paid.

3. On 18 April 2000, the Applicant lodged a notice for leave to appeal against sentence. The application was heard before this Court on 28 June and at her request, we granted an adjournment for four weeks to enable her to obtain legal representation. Four months have since lapsed between the adjournment and to-day. On 1 August 2000, the Applicant filed a notice abandoning her application for leave to appeal against sentence.

4. On 22 August 2000, she filed another notice of application for leave to appeal. The reasons she gave were set out in her hand-written statement in Chinese and this read :

"I, Wong Yuet Yee, now apply for an appeal against sentence. On the last occasion when I applied for an appeal, I cancelled the appeal owing to the disapproval of the Legal Aid Department. However, now there is an organization providing volunteer lawyers who could assist me. Therefore, I wish to apply for leave to appeal against sentence out of time again. My mother-in-law is staying home and suffering from dysbasia. Therefore, I hope that I could be granted a reduction in sentence and go home earlier to take care of her. I respectfully ask for your permission."

5. This morning, she told us that she had applied for assistance from the Bar Free Legal Service Scheme for counsel to represent her in this application. We refused the application because the Applicant had four months to obtain whatever assistance she could get and we do not think this is a good ground to grant another adjournment. She then told us that she was a first time offender and she pleaded guilty and the probation officer suggested that she was suitable for community service order. She asked the Court to give her a chance.

6. There is another point raised in this appeal and this is whether we are competent to hear the application for leave to appeal against sentence, the same application having been abandoned. Therefore this application has been listed as an application to treat the abandonment as nullity. The law governing this is to be found in R v Medway [1976] QB 779 where the English Court of Appeal emphasized that

"alongside the jurisdiction which undoubtedly existed to give leave to withdraw abandonment where it was shown that the circumstances were such as to enable the court to say that the abandonment should be treated as a nullity, there did not co-exist an inherent jurisdiction, in other special circumstances, which enabled the court to give such leave. The kernel of the "nullity test" is that the court must be satisfied that the mind of the Applicant did not go with his act of abandonment. It was impossible to foresee when and how such a state of affairs might come about, and it would be wrong to make a list under the headings - mistake, fraud, wrong advice and misapprehension - which purported to be exhaustive of the types of case where the jurisdiction could be exercised "

7. There is not a shred of evidence to suggest that the mind of the Applicant did not go with her act of abandonment.

8. The judge described that this type of offence was very serious and we agreed. The sentence of 18 months for eight offences over a period of several months is, in our view, a lenient sentence. The Applicant should have considered herself to be extremely fortunate.

9. We would add, in relation to D2, although his role was much less, it is disturbing that the Judge had thought fit to impose a sentence of community service order. He should have been given a sentence of imprisonment.

10. We are satisfied that there is no substance whatsoever in the application. It is a complete waste of the court's time and public money. Despite our advice, the Applicant persisted in thinking that she could get away from a series of serious offences. The application is completely devoid of any merit and we would therefore order a loss of time of two months, that is to say two months that she has spent in custody would not be counted as part of her sentence. The application is dismissed.