HKSAR v. Baguma George

CACC 65/2020

[2021] HKCA 1964

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 65 OF 2020

(ON APPEAL FROM HCCC NO 189 OF 2018)

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Before: Hon Macrae VP, Zervos JA and M Poon JA in Court

Date of Hearing: 17 December 2021

Date of Judgment: 17 December 2021

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.This was originally an application for leave to appeal against conviction out of time. However, upon our inquiry and clarification, the applicant made it clear he was not appealing against conviction, which he abandoned and we formally dismissed.

2.However, in the course of our inquiry, he raised matters which appeared to go to the issue of sentence, although he has never formally mounted an application for leave to appeal against sentence, nor has he ever properly or satisfactorily explained why his application for leave was made some 15 months out of time.  Nevertheless, we listened to what he had to say in case there was something which would inure to his advantage. 

3.Nothing the applicant has advanced can remotely amount to a reasonable argument in relation to an appeal against sentence. Indeed, the sentence may be regarded as on the generous side in all the circumstances.  The judge adopted a starting point of 21 years’ imprisonment, although arithmetically she acknowledged it could have been 21 years and 4 months’ imprisonment.  She further decided not to take into account the cannabis content in the charge.  Having properly enhanced the starting point by 1 year for the applicant’s status as a Form 8 Recognizance holder, she arrived at a notional sentence after trial of 22 years’ imprisonment.

4.From 22 years’ imprisonment, the judge discounted the sentence by some 35.6% for the applicant’s early plea, the fact that he had given some assistance to the police, which was ultimately assessed to be of no practical value, and for his assistance to Father Wotherspoon’s “campaign” against drug-trafficking; although the judge relied upon the assertion that he had assisted the campaign without apparently being shown the letter(s) the applicant had provided.  Had the notional sentence after trial been 22 years and 4 months’ imprisonment, which it could have been, the ensuing discount for these matters would have been 36.6%.

5.The applicant can have no complaint about the discount he received from the notional sentence after trial.  And, as we have said, there has been no proper or satisfactory explanation why we should extend any further time in relation to sentence, which he has never before given notice of his intention to appeal.  The application for an extension of time is therefore refused, and his appeal, such as it is against sentence, is dismissed.

6.We should add this.  We have considered whether we should order the applicant to serve loss of time for effectively pursuing an appeal that is wholly without merit, following a refusal of leave by the Single Judge[1], in which he considered the applicant’s complaint about the adequacy of his discount[2]. We have come very close to ordering that he serve two months’ loss of time. However, we have decided against that course.  The matter is now closed.  The appeal is simply dismissed.

Mr Kelvin Tang SPP of the Department of Justice, for the Respondent

The Applicant appeared in person

[1] HKSAR v Baguma George [2021] HKCA 147 per Zervos JA, 3 February 2021.

[2] Ibid., at [20] and [28].