HKSAR v. CHAN KAM TO

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.115
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. The matter now before us is listed as an application for leave to treat a Notice of Abandonment as a nullity. There is already a lengthy history to the matter but, stressing again our gratitude to Mr. Bruce, S.C. for the Respondent, for the helpful schedule he has provided, it can be summarized in this way.

2. On 24th February 1997, the Applicant, who was D2 at trial, was convicted of three offences including arson with intent to endanger life. He was sentenced to a total of 12 years' imprisonment.

3. On 18th February 1998, the application for leave to appeal against conviction made by this Applicant was dismissed. D1 also made an application relating to conviction and sentence, and both applications were dismissed.

4. On 27th February 1998, the Applicant filed notice of appeal against sentence out of time. On 24th April 1998, his application for Legal Aid was refused. On 13th May 1998, the Applicant filed a notice of abandonment in respect of his notice of appeal against sentence out of time.

5. In his present application, the Applicant says that he has found what he calls "new grounds and a recent authority" and asks this court to give him a further chance to appeal against his sentence despite his earlier abandonment. He goes on to say that in the arson and murder case of the Top One Karaoke in Tsim Sha Tsui, "one of the defendants was convicted of two counts of manslaughter and was given a severe sentence. Gall J., who tried the case, said that 'the defendant had participated in a revengeful act which is unlawful. A reasonable man would know that that would cause harm or death to others.' There were 17 people killed in that case, and the defendant was given a severe sentence of 11 years."

6. We can say at once that every case is treated on its own merits and, whether a case is treated too leniently or too harshly, there is a right of appeal to this court. The karaoke fire-bombing at Tsim Sha Tsui was decided on the circumstances of that case by a different judge on wholly different facts to the present case. We are not here to judge whether the sentence imposed in the Tsim Sha Tsui case was right or wrong. We are merely concerned with this Applicant's case.

7. The ground which has been put forward has in itself, so far as we can see, no merit to it and we can indicate straight away that we do not propose to grant leave. We have in mind, when saying this, the matters which Stock J. referred to when he was passing sentence. This was a most dreadful crime. The aggravating features of the case appear in the judgment of this court given on 18th February 1998, particularly as they related to the application for leave to appeal against sentence in the case of D1. These have been itemized and almost all related to this Applicant as well. There were 9 relevant points:

(1) This was an offence committed in the early hours of the morning when it could be expected that the occupants of the flat would be asleep.

(2) The perpetrators knew full well that a family lived inside.

(3) A locked bicycle chain was put through the metal grille gate to prevent it from being opened.

(4) A cloth was wrapped around a canister of butane gas which would have had terrible consequences if it had exploded.

(5) This was a planned arson.

(6) It was an act of revenge which formed part of an on-going campaign of fear.

(7) This took place in a multi-storey building where many others may have been affected by the fire.

(8) There were triad overtones to the case.

The ninth feature affected D1 and not this Applicant.

8. The trial judge was right to regard, as a particularly appalling feature of the case, the use of the lock to prevent the family from escaping, and to find that it was sheer good fortune for the occupants of the flat that they came to no harm because one of them happened to be up and about when the attack on their flat was made.

9. In the Applicant's case, as it was in D1's case, we can say that there is no merit to the application. The sentence he received was correct in all the circumstances.

10. Accordingly, we shall not give leave. The application is dismissed.