HKSAR v. Kwan Yun Hang

CACC000252/1997

IN THE COURT OF APPEAL

1997, No.252
(Criminal)

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Coram: Hon. Power, V.-P., Liu, J.A. and Saied J.

Date of hearing: 28 August 1997

Date of judgment: 28 August 1997

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. In this matter the applicant pleaded guilty to two counts of robbery. I shall not recite the facts in full. Suffice to say that they revealed that the applicant and others on 28^th September 1990 successfully terrorized the tellers in the Whampoa Garden Branch of the International Bank of Asia into submission so that they could ransack the drawers of the bank and take cash therefrom. The other count was equally serious. On 13^thh November 1992, he and another man terrorized a woman into revealing her secret code for her Hang Seng Bank Card and then kept her person for some 11 hours. As a result the victim suffered a loss of almost $120,000.

2. The trial judge took into account everything that he should have when sentencing the applicant. On account of plea he reduced the sentence on the first count from a starting point of 12 years to one of eight years and the starting point on the second count from one of nine years to one of six years. Then, bearing in mind totality, he ordered that three years of the six years be concurrent and three consecutive making an overall total of 11 years. The applicant now seeks leave to appeal against that sentence out of time.

3. The grounds which he advances in his application for leave to appeal out of time are in an affidavit in which he says that he has given assistance to the authorities which has enabled them to prosecute a fellow offender. The affidavit goes no further than that. The material which has been handed to us today by Mr. Mitchell-Heggs, who appears for the applicant, indicates that the fellow offender has pleaded guilty. It is submitted that the information given by the applicant was instrumental in leading to this plea and that, had this been able to be taken into consideration at the time of sentence, a greater discount than that given would have been allowed. Had this been an application for leave to appeal against sentence within time that may well have been so. It is, in fact, very much out of time and the attitude of this court to such applications has been made plain in cases such as R. v. Mak Chan-pui Criminal Appeal No.483 of 1992 (unreported), in which Mortimer J.A., giving the judgment of the Court, said:

"That leaves the one other matter raised by the applicant. In 1994 he gave evidence against the mastermind in this series of offences. As a result he was convicted and received 18 years' imprisonment. Two other convicted persons also gave assistance in the same case. They each received a reduction of one year's imprisonment from their sentences. These reductions were granted on petition to His Excellency the Governor. As this Court has said on a number of occasions when assistance is given to prosecuting authorities by a prisoner after sentence and after the time for appealing has expired, the proper procedure is for such an applicant to petition to His Excellency the Governor and not to seek further leave to appeal to this Court. That course is still open to this applicant. There are no grounds upon which this court ought to allow this application which is refused."

These words have the clearest applications to the circumstances before us. We refuse leave to appeal against sentence out of time. We indicate to the applicant, as it seems he well knows, that it is open to him to make an application to the Chief Executive for clemency in the light of the assistance which he is given to the authorities.

Representation:

Mr. I.G. Cross, S.C. & Mr. Edmond Lee, G.C. (D.P.P.) for the Respondent.

Mr. A.B. Mitchell-Heggs assigned by D.L.A. for the Applicant.