The Queen v. Ma Kam Chuen

CACC000170/1990

BETWEEN

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Coram: Hon. Sir Derek Cons, VP, Clough & Macdougall, JJA

Date of haring: 28 June 1991

Date of delivery of judgment: 28 June 1991

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JUDGMENT

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Sir Derek Cons, VP, delivered the judgment of the court:

1. Ma Kam Chuen ("the defendant") committed robbery on 3rd October 1989. He and the another man fell upon a lady as she was about to open the iron grille to her flat. They manhandled her to the ground, stole her necklace and a bracelet. She was brave enough to chase after them and they were arrested in a nearby restaurant.

2. Being charged in the District Court the defendant pleaded not guilty, but was ultimately convicted on 28th March last year. He lodged a notice of appeal against his conviction on 20th April. Just above his signature on that document are the words:

"It has been fully explained to me that if I appeal against both conviction and sentence at the same time, one will not have any adverse effect on the other."

3. His appeal against conviction was dismissed by another division of this court on 27th November last year. Three days later he lodged a notice of appeal against sentence. By then he was grossly out of time and now needs the leave of this court in order to proceed further.

4. The affirmation filed in support of an application for that leave patently discloses no ground whatsoever for granting leave and counsel who appears today has wisely not sought to press the point. We can only express surprise that having seen the affirmation, as he must have done, the Director of Legal Aid thought fit to grant legal aid in its support.

5. Lest it should be thought that we have completely ignored any possible merits in an appeal we wish to say that we have all read and considered the perfected grounds which counsel has prepared on the defendant's behalf. The first point put forward in mitigation, i.e. family circumstances, contrary to the suggestion made in the perfected grounds does appear to have been mentioned to the judge below. Counsel then appearing referred to the responsibility which the defendant felt for his family and child.

6. The second point which relates to the death of his mother-in-law subsequent to the date of sentence, obviously could not have been mentioned to the judge. But we do not consider it a fact of sufficient weight to warrant our interference.

7. We have also all read and considered the authorities to which counsel intended to refer us in support of the contention that the sentence is manifestly excessive. In our view none assists towards that end, all turning on the particular facts of the appeal with which the court was then dealing. In our view it is most unlikely that, had leave been given, it would have been of any assistance to the defendant. In any event, for the reasons we gave earlier, leave to extend time is refused.

Representation:

A.S. Schapel, Crown Prosecutor for the respondent

Wong Po Wing (D.L.A.) assigned for the applicant