HKSAR v. Thanasegaran Arumugam

CACC 314/2014

CRIMINAL APPEAL NO. 314 OF 2014

(ON APPEAL FROM DCCC NO. 621 OF 2014)

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JUDGMENT
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Hon Lunn VP (giving the Judgment of the Court) :

1.By a Notice of Motion filed out of time on 18 September 2015 the applicant, who appeared in person, invited the Court, pursuant to Section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 to certify that points of law of great and general importance are involved in the Reasons for Judgment of the Court dated 7 May 2015. There, we dismissed his renewed application for leave to appeal against the sentence of 3 years and 4 months’ imprisonment imposed on him by District Court Judge Dufton on 4 September 2014 in respect of Charge 6, following the refusal of the application for leave by McWalters JA on 26 November 2014, together with his applications for leave to appeal out of time against his convictions and the sentence of 2 years and 2 months’ imprisonment imposed in respect of Charge 5.

2.On 4 September 2014, having pleaded guilty to two charges before District Court Judge Dufton, namely a charge of using a false instrument, a visa card in the name of Mok J. Z., (Charge 5) and a charge of possessing a total of 17 false instruments, 16 of which credit cards were in his own name, (Charge 6) the applicant was sentenced to a total of 3 years and 4 months’ imprisonment.

Application out of time

3.In an affirmation dated 18September 2015, the applicant sought to explain the fact that his application was made out of time[1].  He said that he was indigent and had sought, but failed to get assistance from the Legal Aid Department. Also, he claimed that he had difficulties in communication, since he spoke the Tamil language only.

4.In 15 pages of handwritten submissions in Tamil script, of which we have a translation, attached to the Notice of Motion the applicant canvassed an array of matters with which he took issue in the Reasons for Sentence of District Court Judge Dufton and the Judgment of this Court.  He submitted that this Court and the judge were wrong to approach his culpability on the basis that he was involved in a “medium sized operation” of forged credit cards.  He had used only one of the forged cards to obtain goods up to the value of $520.  Further, he said that the judge should not have used “potential loss” arising from use of the forged credit cards to assess the sentences for his offences: first, the 16 credit cards in his own name found in his possession could not be used; secondly, the judge had sentenced his co-accused on the basis of the value of goods obtained with a stolen credit card, rather than the potential loss. Next, he submitted that this Court and the judge were wrong in having regard to an international dimension in the case because he had no intention of committing a crime in Hong Kong, other than using the credit card the subject of Charge  5.  In the result, the applicant submitted that the sentences imposed on him were disproportionately heavy to those imposed on his co-accused and were manifestly excessive.

5.In his oral submissions, the applicant reminded the Court that complaint was also made in respect of the provision of an interpreter at a hearing before this Court on 28 April 2015.  That was a matter result at the hearing with the applicant confirming that he had no objection to be interpreted.  His objection was to the sentence imposed on him.

6.The complaints of the applicants are all matters that were addressed in the Judgment of this Court.  They have no merit whatsoever.  The applicant will not accept that to be the case.  In the event, all three members of this Court have written judgments at various stages in the course of the different applications made by the applicant.

Conclusion

7.The applicant has given no satisfactory explanation for filing his Notice of Motion four months out of time.  In any event, we are satisfied that no questions of law of great and general importance are involved in our Judgment and we decline to certify otherwise.

Ms. Memi Ng, SADPP(Ag), of the Department of Justice, for the respondent

Applicant appeared in person

[1]      Paragraph 4 of Practice Direction 4.3 ‘Criminal Appeals in the Court of Appeal Handing Down Judgments’ requires that an application to this Court for a certificate be made within 7 days of the handing down of the judgment.