HKSAR v. LAU KAM KEUNG also known as ZHANG YAO DONG

CACC 405/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 405 OF 2000

(ON APPEAL FROM DCCC 737/2000)

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J U D G M E N T

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Seagroatt J (giving the judgment of the Court):

1. This is an application by Mr Lau Kam Keung for leave to treat his abandonment of an earlier notice of application for leave to appeal against sentence as a nullity. In short, he was sentenced to a total term of 50 months' imprisonment on 18 September 2000 and those offences related to the use of a false passport, the making of two false certificates of analysis of a chemical to be used in manufacture of anti-biotics, a false representation that he had such chemical for sale in applying for a letter of credit, the use of a false company chop and the false endorsement on the application for the letter of credit; and finally attempting to negotiate a letter of credit by falsely representing that the chemicals had been shipped when in fact only flour had been shipped. It was on the occasion of the last offence, the 12th, that he was arrested.

2. The learned judge, Her Hon Judge Poon, imposed concurrent terms of 16 months' imprisonment in respect of the 1st, 2nd, 3rd, 4th, 5th and 7th counts in the indictment and a concurrent term of 40 months in respect of Count 12, being the attempt to negotiate the letter of credit by false representation. He was also ordered to serve in effect a consecutive term of 10 months for attempting to obtain property by deception.

3. Following his arrest, he failed to answer to his police bail and left Hong Kong for the Mainland where he stayed for approximately two years. That was the period of delay that elapsed before he appeared before the court in Hong Kong and during that period of absence, he was kept in custody on the Mainland for a total of 35 days. It is that period of custody brought about by his own action, for which he seeks credit in respect of the sentence imposed.

4. He made the application for leave to appeal on 26 September 2000 but abandoned it on 4 April 2001 and he made it clear in the abandonment that it was because he was refused legal aid and had no grounds to substantiate any appeal. Since that period of time he appears to have obtained some information about other cases upon which he relies. But what is clear is that the terms of the abandonment were themselves unequivocal as he set out indeed in his application before this court, which was read to him not very long ago when he said that he withdrew his appeal on the grounds that the Legal Aid Department refused to appoint a lawyer to represent him in court and that he had not yet got any grounds to substantiate his appeal at that time.

5. The principles in relation to the court's jurisdiction in such applications were stated by a five-judge Divisional Court in England in R v Medway [1976] 62 Cr App R 85 where the criterion, then established and distilled from a number of other cases, and set out quite clearly, was that where the abandonment was not the result of a deliberate and informed decision, then a court had jurisdiction to consider it as a nullity.

6. The principle was restated in this Court of Appeal in HKSAR v Solis Antelo Richard, CACC 537 of 1997, unreported, when my Lord the Vice President then presided, and that principle has remained the same since then.

7. The Applicant decided to withdraw or abandon his application for leave to appeal against sentence when legal aid was refused. He also accepted at that time that he had no grounds at all to support his appeal. Such reasons fall well outside the criterion established by the line of cases and in those circumstances we reject his application to treat that abandonment as a nullity.

8. In passing we should add this, that the 35 days that he seeks or sought in his Notice of Application to have taken into account in respect of the sentence was a matter put by his counsel on his appearance in the District Court before the judge. But the circumstances are such in any event that it is a matter that had absolutely no merit in his particular case, he having brought that about by his own action in leaving Hong Kong for the Mainland. As far as his complaint against the sentence of 40 months for the fraudulent offence in respect of the letter of credit is concerned, this court has emphasized on a number of occasions the need for severe sentences in such cases where letters of credit have been fraudulently obtained or negotiated because such offences strike at the root of commercial trust and this position was fully set out and considered in R v Chan Kam Chuen [1995] 2 HKCLR at p. 257; HKSAR v Cheung King [2001] 3 HKLRD 68 and most recently in HKSAR v Ko Mee Lun, CACC 449 of 2001, heard and decided on 12 April 2002.

9. In all those circumstances the application is refused.