HKSAR v. Hossain Sheikh Afjal

CACC 68/2025 [2025] HKCA 715

On appeal from [2021] HKDC 919

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 68 OF 2025

(ON APPEAL FROM DCCC NO 895 OF 2020)

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BETWEEN

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J U D G M E N T

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1.The applicant faced a single charge of robbery in the District Court before Judge E Yip (the judge), where it was alleged that the applicant stole a box of durian at knife point from a shop at a fruit market. On the first day of trial on 26 July 2021, he pleaded not guilty to robbery but indicated a plea of guilty to the lesser charge of theft, which was rejected by the prosecution. The trial for the robbery charge proceeded before the judge, who, at the close of the prosecution case, ruled that there was no case to answer for the robbery offence, but a case to answer for the offence of theft. On 28 July 2021, the applicant was convicted on his own plea to theft, having agreed a Summary of Facts. The judge sentenced the applicant to 14 months’ imprisonment. On 6 August 2021, the applicant was released from custody having served his sentence.

2.The applicant is a Form 8 Recognizance holder, whose refoulement application has been refused.  As a result of his immigration status, he was required to report to the Immigration Department, but stopped doing so in November 2022.  He was placed on a wanted list and subsequently arrested.  Since 12 August 2024, he has been remanded in custody pending repatriation.  I am informed that he has refused to provide details of his travel documents and personal particulars, which has caused a delay in the processing of his repatriation.

3.On 3 April 2025, the applicant filed a notice for leave to appeal against conviction and sentence out of time by approximately three years and seven months.  The applicant appears in person in his leave application, having had legal aid refused on 16 May 2025.

4.The facts outlined to the judge and admitted by the applicant can be briefly stated as follows.  In the evening of 23 May 2020, he stole a box of durian from a shop at the Fruit Market at Yau Ma Tei.  Two employees of the shop chased after him.  They intercepted him, and there was a struggle.  He produced a 12 inch long knife and pointed it at the two men, who fled.  The applicant was eventually intercepted by police officers who were on patrol.  There was a struggle, and he had to be subdued.

5.In sentencing the applicant, the judge adopted a starting point of 21 months’ imprisonment given the seriousness of the theft offence.  After a one third discount for his guilty plea, the judge sentenced the applicant to 14 months’ imprisonment.  The judge also activated a suspended sentence of 2 weeks for shoplifting.

6.The applicant has not provided a satisfactory explanation for the inordinate delay in filing his application to appeal against his conviction and sentence.  The conviction was based on his own plea, and there is nothing to indicate that it was equivocal.  The sentence took into account his guilty plea and he was given a one third discount.  The offending was serious in that it involved the applicant, a Form 8 recognizance holder, struggling with the two employees and producing a knife to threaten them.

7.The applicant’s explanation for the late filing of his application was that he had suffered injuries to his feet and was incapacitated for about a year.  This is an irrelevant matter and did not provide an explanation for the delay of over 3 years in filing this application.  There is no substantial and plainly arguable ground of appeal against his conviction and sentence. 

8.This application is devoid of merit and an attempt by the applicant to further delay his repatriation.  Accordingly, the application for leave to appeal against conviction and sentence out of time is refused.

Ms June Wong, SPP, of Department of Justice, for the respondent

The applicant appeared in person