HKSAR v. Lau Ka Chun

CACC 55/2021

[2022] HKCA 65

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 55 OF 2021

(ON APPEAL FROM DCCC NO 793 OF 2020)

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J U D G M E N T

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1.On 3 March 2021, the applicant was sentenced to 4 years and 2 months’ imprisonment by District Court Judge Dufton following his conviction on his own plea to 8 charges of burglary.

2.On 11 March 2021, the applicant applied for leave to appeal against his sentence on the sole ground that lesser sentences had been passed in similar cases.  He did not identify the other similar cases. More importantly, he did not explain how his sentence was wrong according to the relevant sentencing principles and practice.

3.On 15 June 2021, this Court received a letter from the applicant dated 11 June 2021 in which he said he would like to apply for abandonment of his appeal because he had been refused legal aid.  The applicant was duly informed by letter dated 21 June 2021 that he should file a Form VII to formally abandon his leave application and he was advised to seek assistance from the welfare officer at the prison.  The applicant did not file the necessary form as requested.

4.On 27 July 2021, the leave application was fixed for hearing on 7 January 2022.

5.As a result of not hearing from the applicant, the court issued a direction to the applicant on 28 December 2021, setting out his previous intention to abandon his appeal and reiterating that if he intended to do so he must file a Form VII, a copy of which was attached to the letter.  He was also reminded that the Single Judge could order loss of time should the applicant fail to file such a form prior to the leave hearing.

6.There was still no response from the applicant and court staff confirmed with the prison authorities that the applicant had received the notifications from the court but wished to proceed with his leave application.

7.No submission has been filed by the applicant with the Court in support of his leave application.  The respondent had filed on 14 July 2021 a detailed written submission together with a list of authorities, submitting that the application was devoid of merit and should be refused.

8.At today’s hearing the applicant was reminded as to what had taken place and was asked what was his position in relation to his leave application against sentence.  He responded by saying that he did not wish to pursue the application.  As a result, he was told that a loss of time order could be made against him for flagrantly ignoring previous notifications from the court to file a formal notice of abandonment, having indicated he intended not to pursue the application.  At first, he claimed he did not receive the notifications, but later said he received the court’s notification of 28 December 2021 on 1 or 2 January 2022.  He claimed he did not understand it but when it was pointed out that it was in both Chinese and English he had nothing to say.  He maintained his claim that he did not receive the courts letter of 21 June 2021, nor the respondent’s submissions filed on 14 July 2021.  He claimed that the first time he was aware of the respondent’s submission was when it was translated to him prior to the commencement of today’s hearing.  He also claimed that this prompted him not to pursue the application.

9.Enquiries were made with the Correctional Services Department and it was confirmed from their records that the applicant received the court’s notifications about filing a formal notice of abandonment and the respondent’s written submissions.  On 23 June 2021, he received and signed for the court’s letter dated 21 June 2021.  On 16 July 2021, he received and signed for the respondent’s submissions dated 14 July 2021.

10.While a degree of latitude is given to applicants in person in the appeal process, if an application is patently devoid of merit or is frivolous, consideration will be given to a loss of time order. When an applicant embarks upon an appeal, he or she is initiating important court proceedings that should not be taken lightly and that is apparent from the procedural rules and forms that have to be filed or exchanged as the case progresses.  The applicant took no positive step to justify his application, nor terminate it when he realised that he had no cause for complaint about his sentence.  He was put on notice about the court’s power to order loss of time in the various papers either initiated or received by him.  He chose to take a cavalier and irresponsible attitude to the proceedings that he had initiated. I therefore propose to order 4 weeks loss of time.

11.I should point out that this application was an exercise of futility from day one.  It was totally devoid of merit.  The applicant pleaded guilty to 8 offences of burglary between November 2019 and April 2020 of non-domestic premises, that were mainly educational establishments. The total value of stolen property was $224,531, consisting of iPads, electronic products and equipment, amounts of cash and other items.  Some of the premises he burgled were also seriously damaged due to the force he used to gain entry into them.

12.At the time of sentence, the applicant was 31 years of age.  He had three previous convictions, including a conviction for theft in 2005, for which he was placed on probation.  In mitigation it was submitted that he committed the offences out of greed and was remorseful for what he had done.

13.Having noted the applicant’s background and mitigation, the judge reviewed the circumstances of the offences and adopted a starting point of 2 years and 6 months’ imprisonment for each charge, which he reduced by one third for the applicant’s guilty plea to 1 year and 8 months’ imprisonment.  The judge then took into account the overall criminality of the offences and the culpability of the applicant, and in applying the totality principle arrived at a total sentence of 4 years and 2 months’ imprisonment.

14.No complaint can be made of the sentence that was imposed on the applicant in light of the multiplicity of offences and the substantial value of the property that was stolen[1] and the damage caused to the premises as a result of these burglaries.[2] A sentence of this level of severity was warranted as a deterrent to the applicant who by his criminal conduct was a serial burglar.

15.The applicant confirmed that he wished to abandon his appeal and accordingly his appeal against sentence was dismissed.  For the reasons I have given, I also order 4 weeks loss of time.

Mr Derek Lau, SPP, of Department of Justice, for the respondent

The applicant appears in person

[1] HKSAR v Cheng Wai Kai, unrep., CACC 338/2007, at [15].

[2] HKSAR v Fan Kit Hung [2009] 6 HKC 315, at [10].