The Queen v. Lau Ki Cheong

CACC000244/1988

IN THE COURT OF APPEAL

BETWEEN

Coram: Hon. Hunter & Penlington, JJ.A.

Date of hearing: 5th August 1988

Date of judgment:  5th August 1988

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J U D G M E N T

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Hunter, J.A. :

1. This is an application for leave to appeal against the sentence out of time. The first issue before the court is whether it should extend the time for making this application.

2. The short facts are these. The applicant was convicted on 7th January 1988 on a charge of robbery. On 14th January he put in an application for leave to appeal against conviction, and acknowledged in that form that "it has been fully explained to me if I appeal against both conviction and sentence at the same time one will not have any adverse effect on the other'". That application was proceeded with and dismissed by this Court on 18th May. On 24th May the applicant swore an affirmation, whereby he sought leave to make this application and in which he says:-

"In the beginning I believed I would be successful in having my conviction quashed, and therefore applied for leave to appeal against only the conviction and not sentence".

That day or a few days later, the present application was filed.

3. The time limited for appealing by section 830 of the Ordinance is 28 days. Subsection 3 of that section gives the court power to extend the time before or after it has expired. But as the Full Court held in Jogendra Singh v R⁽¹⁾, the Court entertains applications for extention of time only in exceptional circumstances, and the citing from Lord Alverstone in R v Rhodes⁽²⁾ where the court has "substantial reasons" placed before it.

4. Two reasons are advanced here. The first by counsel on instructions, is that following the conviction advice was sought upon the possibility of an appeal against sentence. The advice tended then was that the five years' sentence was within the existing tariff and that there was small chance of a successful appeal. It is now suggested that this position has been altered by the reasons for, sentence subsequently filed by the trial judge. The second reason advanced is that which was contained in the affirmation to which I referred, that having regard to the history of this case this applicant thought he had good grounds for appeal against conviction.

5. It seems to us that this case comes down to this. Immediately after his conviction the applicant took advice. He came to the conclusion that he had good grounds for appealing against conviction and no grounds for appealing against sentence He chose to appeal against conviction only. That application having failed he now wishes to re-open the position on sentence. Those facts, in our view, do not really start to disclose any ground, still less a substantial ground, for extending the time. Therefore this application for an extention of time is refused, and the application itself dismissed.

(1) [1963] HKLR 718

(2) [1910] 74 JP 380

Representation:

Christopher Grounds (M/s Chung & Kwan) for Applicant

I G Cross, Deputy Crown Prosecutor (Ag) for Crown/Respondent