HKSAR v. TAM TAT YUEN

CACC 53/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 53 OF 2004

(ON APPEAL FROM DCCC NO. 1194 of 2003)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.  On 2 February 2004, the applicant was convicted, following a trial in the District Court before Judge Whaley, on 5 charges relating to offences committed in 1995 (when he failed to surrender to custody) for which he received a combined total of 4½ years’ imprisonment.  He lodged a notice of application for leave to appeal against conviction and sentence in good time but he abandoned both applications on 20 May 2004.  However, in an affirmation dated 17 October 2005, the applicant sought to renew his application in regard to sentence and accordingly the matter now comes before us as an application to treat his previous abandonment as a nullity.

2.  The applicant explained in his affirmation that he had been wrongly informed by a superintendent in the Correctional Services Department that an application for leave to appeal must be in relation to conviction and sentence when he had only wished to appeal against conviction.  When he was refused legal aid, and his family was unable to pay for a lawyer, he gave up both the applications.  He later decided, based on information he was given about another case, that he should appeal “out of time” against sentence.

3.  We have not been provided with any good reason to accede to this application.  It is quite apparent that when the applicant abandoned his sentence application, legal aid having been refused, this was a conscious decision on his part to do so.  His mind, in other words, plainly went with his act and, there is nothing which suggests that the applicant had misunderstood the nature of the notice of abandonment or its effect (see: HKSAR v Lai Siu-cheung [2005] 1 HKLRD 1).

4.  We would add that if this had been an application for leave to appeal against sentence we would have been minded to increase it.  It is clear, in our judgment, that the judge erred in principle as well as on totality in running the sentences for resisting arrest, for possession of a forged identity card and for failing to surrender to custody concurrently with the other sentences imposed for the thefts of motor vehicles.

5.  The application is dismissed.