HKSAR v. CHAN MEI PO

CACC 392/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 392 OF 1999

(ON APPEAL FROM DCCC 1358 OF 1998)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicant was convicted twice in the District Court in separate cases. In CACC 392/1999 she was convicted of six counts of false accounting and sentenced to a total of three years' imprisonment. In CACC 472/1999 she was convicted of ten counts of false accounting and three counts of making a false instrument. She was sentenced to 21 months' imprisonment, 18 of which were ordered to be served consecutively to the sentences imposed in CACC 392/1999.

2. In both cases she sought leave to appeal against her convictions and the sentences which were imposed.

3. The applicant made numerous appearances before the court. Adjournments were granted to her so as to enable her to obtain legal representation.

4. Matters came to a head on 5 December 2000. On that occasion she was represented by Mr Lee of counsel.

5. It would appear that Mr Lee gave advice to the applicant that her prospects of success in these appeals were not very favourable.

6. She was also informed that in the event of the court forming the opinion that the applications were entirely unmeritorious it was likely that the court would order that some of the time she had spent in custody would not count towards the sentences she was serving.

7. She accepted the advice given to her and instructed counsel to abandon the appeals against conviction. When she indicated that she wished to pursue her appeals against sentence she was reminded of the court's powers. She then abandoned her appeals against sentence.

8. At about the end of March or beginning of April 2000 she wrote an undated letter to the court in which she sought leave for the court to treat her said abandonments as a nullity. This letter indicated that she wished to appeal against conviction and sentence in CACC 392/1999 and only against sentence in CACC 427/1999.

9. She advanced various grounds in support of this. The first was that she had not fully appreciated the significance of what she had done.

10. Mr Lee, her counsel, was invited to comment on the position. He outlined the advice which he had given the applicant.

11. For an application of this nature to succeed it is necessary for the applicant to demonstrate that her mind did not go with the decision to abandon the appeals.

12. On the basis of the material which is before us it is clear that the applicant falls far short of establishing this. It is apparent that a rational decision was made by the applicant on the basis of the advice she received.

13. She also referred to her mother's ill health and claimed that her legal representation had not been satisfactory.

14. We have no reason to suppose that the applicant's legal representation was not satisfactory.

15. It can be seen from these papers that this applicant is well educated and was able to hold down jobs which required a considerable measure of expertise to perform them.

16. It is also noteworthy to observe that the applicant waited for 3 months or so before making this application.

17. The applicant has not discharged the heavy burden imposed upon her to enable us to accede to this application. It is accordingly dismissed.