The Queen v. Lai Kok on

CACC000192/1991

Headnote :

Sentence : Out of Time : Observance of the advice in a Notice of application for leave to appeal.

BETWEEN

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Coram: Hon. Silke, V.-P., Power and Penlington, JJ.A.

Date of Hearing: 19 December 1991

Date of Judgment: 19 December 1991

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JUDGMENT

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Silke, V.-P.:

1. This is the judgment of the Court.

2. The applicant, Lai Kok-on, was convicted after trial before Her Honour Judge Beeson in the District Court for the offence of possession of dangerous drugs for the purpose of unlawfully trafficking. He was sentenced to a period of 4 years' imprisonment. The particulars of the charge were that he had in his possession 26.77 grammes of a mixture containing 18.99 grammes of salts of esters of morphine.

3. On the 29th April 1991, he filed an application for leave to appeal against that conviction. Subsequently he was granted Legal Aid, but he discharged that certificate and himself obtained private legal representation. Eventually, the firm of solicitors involved informed the court that they had no further instructions.

4. On the 11th December 1991, the applicant abandoned his application in respect of conviction. Meanwhile, on the 15th December 1991, the applicant filed an application for leave to appeal against sentence out of time. He said in his affirmation grounding that application that he thought his chance of winning the case - in other words succeeding in his appeal against conviction - was good. He therefore did not take into account "the advantages of reduction of sentence". The sole ground advanced as to why the sentence was wrong was that it was too severe.

5. At the time that he filed the application in repect of conviction, he acknowledged that it had been explained to him that if he appealed against both conviction and sentence at the same time one would not have any adverse effect upon the other.

6. He made a second application for Legal Aid in respect of the sentence application. This was refused. He was informed of that refusal two days ago.

7. In pursuing his application for leave out of time this morning he has asked us to adjourn the matter so that he can obtain private legal representation. We refused that application.

8. The applicant is very substantially out of time. We have nevertheless considered the quantum of the sentence passed lest we should, by refusing him leave to appeal out of time, shut out a meritorious appeal. In the guidelines set out in R. v. Lau Tak Ming [1990] 2 HKLR 370, between 10 and 50 grammes of narcotic attracts, after trial, a sentence of between 5 to 8 years' imprisonment. Here the quantity of the narcotic was 18.99 grammes. The trial judge taking a very merciful view gave less than the general tariff sentence.

9. We find no merits in this application whatsoever. There was nothing to prevent the applicant, if he so desired, from appealing against sentence at the same time he appealed against conviction. The sentence is by no means severe. He can consider himself fortunate that he got so lenient a sentence.

10. Leave out of time is refused. As we have indicated this matter has no merit. There will be loss of time of one month. That is one month of the time between the filing of the application and today will not count towards sentence.

Representation:

P. Leung Esq. for Crown/Respondent

Applicant in person