The Queen v. Lam Kuen

CACC000411/1995

IN THE COURT OF APPEAL

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Coram: Bokhary JA & Bewley J in Court

Date of Hearing: 9 January,1996

Date of Judgment: 9 January,1996

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JUDGMENT

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Bokhary JA:

1. This is an application for leave to appeal against sentence.

2. The circumstances of the application are very unusual. The charge against the applicant, contained in a charge sheet dated October 11, 1986, is that on January 14, 1985, he dishonestly obtained $30,000 from a woman by pretending that he was going to change the same for her into Renminbi at a higher than normal rate of exchange. In fact, he simply disappeared with her money.

3. His trial on that charge of obtaining property by deception commenced before HH Judge Fung in the District Court on January 9, 1987. The trial was over in a day, a Friday. And the judge adjourned the case to the Monday, January 12,1987, for verdict. The applicant was on bail.

4. On January 12,1987, he failed to surrender to his bail. A bench warrant was issued. And the case was adjourned to January 26, 1987.

5. But on that day, January 26,1987, the applicant was still nowhere to be found.

6. So the case was further adjourned to February, 11,1987. But when that day came, the applicant was still nowhere to be found. His lawyer was however present. And the judge proceeded to deliver his verdict, convicting the applicant as charged. And on the same day - in the applicant's absence, he having absconded - the judge sentenced him to two years' imprisonment.

7. The applicant remained at large until he surrendered to the police on May 18 last year.

8. On the 20th of that month, he was brought before the District Court. By then Judge Fung had retired. It is not clear what happened on the 20th. Anyway, the applicant was brought before HH Judge Gould, the then acting Chief District Judge, on the 23rd of that month.

9. On that day, the 23rd, Judge Gould committed the applicant to prison for him to serve the two-year sentence passed on him by Judge Fung back in 1987.

10. It is against that sentence that the applicant now seeks leave to appeal.

11. He has lodged grounds of appeal which read as follows:

"          I jumped bail for a case in 1987. After eight years of fugitive life, I am very remorseful to the crime I committed in the past. I have not committed any other offense during these eight years. Advising by relatives and friends, I went to the Western Police Station to turn myself in after eight years. I hope the court can give me a chance to have my sentence reduced."

12. The courts would certainly encourage fugitives to give themselves up.

13. On the other hand, we cannot give encouragement to people to abscond and hope that they would get a reduction of sentence if they can show that while at large they had stayed out of trouble. The applicant absconded which is to his discredit. He later surrendered which is to his credit. The two things cancelled each other out. What the applicant gained by surrendering is an end to the anxiety of being a fugitive. After he has served his sentence, he can begin a new life.

14. Now, we just look at his sentence itself to see whether it was right at the time it was passed. The applicant had no real mitigation to put before the court. In common parlance what he did was a "mean and dirty trick". He did not plead guilty. Nor could he point to a clear record. His previous conviction include convictions for theft and robbery. All things considered, it is quite impossible to suggest that the sentence passed by Judge Fung was either wrong in principle or manifestly excessive.

15. In those circumstances, leave to appeal against sentence is refused.

Representation:

Mr David Chan (of the Attorney General's Chambers) for the prosecution

Lam Kuen, applicant in person