The Queen v. Cheng Siu-keung

CACC000258A/1994

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Coram: Mortimer and Mayo JJA and Sears J in Court

Date of Judgment: 16 January 1997

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JUDGMENT

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Mortimer JA (giving the judgment of the Court):

1. On 24 November 1993 the applicant was convicted of an offence of conspiracy to rob. That offence took place on 18 July 1992 and related to a conspiracy to rob the carriers of money arriving in Hong Kong on a Macau ferry. It was case No. 737 of 1993. On 15 December 1993, he was sentenced to 7 years imprisonment.

2. On 7 January 1994 he applied for leave to appeal against both that conviction and the sentence. He later abandoned his application for leave to appeal against sentence. On 6 June 1995, at the hearing of his application for leave to appeal against conviction, that application was dismissed. That was the first case.

3. In a second case, which is No. 258 of 1994, he was convicted on 5 May 1994 of two further offences; one of conspiracy to export unmanifested cargo and the second offence of offering advantages to members of the Customs and Excise. Those offences took place between July 1991 and February 1993. He was sentenced to 1 year and 3 years concurrent for those two offences, but the 3 years was to commence 5 years into the sentence of 7 years earlier imposed.

4. On 30 May 1994, he applied for leave to appeal against conviction only. His application for leave to appeal against conviction was granted, but the appeal was dismissed on 23 March 1993. He now applies to abandon as a nullity his abandonment of his application for leave to appeal against sentence in respect of the conspiracy to rob for which he was sentenced to 7 years imprisonment. He applies for leave to appeal out of time against the sentence of a total of 3 years passed on 5 May 1994.

5. This Court will grant such applications out of time only if there are good grounds for doing so and such grounds are shown by the applicant.

6. If an applicant has assisted the authorities in a significant way, this is of course a ground upon which a sentence may be reduced, for it is the policy of the court to give credit to those who assist in this way. Normally, however, such grounds will only be entertained if the assistance takes place before an application for leave which has been made in time is heard.

7. On good grounds, the court may give leave to appeal against sentence if an application for leave to appeal against conviction has been made within time and has not been heard and disposed of. Again, it is right to point out that there have been rare cases where assistance has begun before the hearing of an application for leave to appeal on sentence and this Court has adjourned such hearing so that it can in due course be informed of the complete picture. However, that this latter circumstance is very unusual.

8. In this case, the time for applying for leave has long passed. The application in No. 737 of 1993 was abandoned a long time ago. In the other case, no application was made. The reasons are clear. At the time there were no grounds which could be advanced for the sentences to be reduced. The sentences were obviously proper sentences for the offence which had been committed. The applicant in his affidavit asking for leave out of time in each case spelt this out when he says he applies out of time because only now has he enough grounds to appeal against sentence.

9. It follows that there are no grounds upon which we can properly grant these two applications.

10. This is not to say, however, that any substantial and valuable assistance which has been given by the applicant will go unrecognised or unrewarded. If he has sufficient grounds, he may petition the Governor-in-Council to ask the Executive to extend clemency to him by reducing his term. We trust that he will be informed of the proper procedure for him to do this.

11. The applications are refused.

12. Before we leave this matter, however, there is one point which has been raised by the applicant. He says that he wanted this Court to hear his application now because of the impending change of sovereignty. What worries him is whether there will be Executive clemency thereafter. Of course, this is not a matter for this Court but there is no reason to think that Executive clemency may not be allowed on proper grounds after the change of sovereignty as it has been before.

Representation:

Applicant in person

Mr Kevin P. Zervos (Crown Prosecutor) for Crown/Respondent