Ma Kam San v. HKSAR
Read the full judgment text of FAMC 21/2002 on BabelCite. This FAMC judgment was delivered on 11 December 2002.
1. In March 1999, the applicant together with two other defendants were convicted after trial in the District Court of conspiracy to commit burglary. He was sentenced to 5 years imprisonment.
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FAMC000021/2002 FAMC No. 21 of 2002 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 21 OF 2002 (CRIMINAL) (ON APPLICATION FOR LEAVE TO APPEAL _______________
_______________ Appeal Committee: Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Chan PJ Dates of Hearing: 13 June, 4 and 11 December 2002 Date of Determination: 11 December 2002 _________________________ DETERMINATION _________________________ Mr Justice Chan PJ: 1.In March 1999, the applicant together with two other defendants were convicted after trial in the District Court of conspiracy to commit burglary. He was sentenced to 5 years imprisonment. 2.In November 1999, the applicant applied for leave to appeal against his conviction. His application was dismissed by the Court of Appeal which also ordered loss of time for 6 months pursuant to s.83Y of the Criminal Procedure Ordinance, Cap. 221. 3.In May 2002, he applied for extension of time to apply for leave to appeal against the order for loss of time, relying on the same points of law as those argued in the Court of Final Appeal in FACC No. 2 of 2002. His application was adjourned pending judgment of the Court of Final Appeal in that other case. He was given bail pending his application. 4.Having considered the judgment of the Court of Final Appeal in FACC No. 2 of 2002 which was handed down on 4 December 2002, he indicated through counsel that he would abandon these points of law as the grounds of his present application. 5.However, he relies on the substantial and grave injustice ground alleging two points. First, he had not been given any warning of the risk of loss of time by the Court of Appeal. This is factually incorrect. From the court record, the Court of Appeal did give the warning to him. We are satisfied that the applicant had sufficient warning of the risk of proceeding with his application. 6.The second point is that since he was released on bail, he has now turned over a new leaf : he has found a new job, and obtained public housing. It would be detrimental to him in his effort to turn over a new leaf if he were to go back to prison and serve the remaining term under the order for loss of time. 7.Much as we sympathize with him, we do not think the Appeal Committee or the Court of Final Appeal has the power to interfere with the order for loss of time on this ground. In these circumstances, we refuse leave to appeal.
Representation: Mr Wong Po Wing (instructed by the Legal Aid Department) for the applicant on 13 June, 4 December and part of 11 December 2002 Mr Ma Kam San, the applicant in person, on 11 December 2002 Mr P.S. Chapman and Mr Vincent Wong (of the Department of Justice) for the respondent on 13 June 2002 Mr Kevin Zervos and Mr Kelvin Lee (of the Department of Justice) for the respondent on 4 and 11 December 2002 |