HKSAR v. Yeung Kam Leung

CACC000430/1999

CACC 430/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 430 OF 1999

(ON APPEAL FROM DCCC NO. 466 OF 1999)

Coram: Hon Stuart-Moore VP, Mayo JA and Wong JA in Court

Date of Hearing: 6 January 2000

Date of Judgment: 6 January 2000

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J U D G M E N T

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Wong JA:

1. The Applicant appeared in the District Court on a charge sheet that contained 3 charges. He pleaded guilty at the commencement of the trial to the first charge of handling stolen goods and the third charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. He pleaded not guilty to the second charge of attempted robbery and was acquitted after a trial. In the result, Deputy Judge P Li sentenced him to a total sentence of 31 months' imprisonment, being made up of 16 months for handling and 15 months for the unlawful landing and remaining in Hong Kong offence. The sentences were ordered to be served consecutively. He now seeks leave to appeal against conviction in respect of the two offences to which he had pleaded guilty.

2. The facts in relation to these two charges were very simple. At 11 am to 12 noon on 29.3.1999, a burglary took place in a stone hut in Fanling and a large quantity of items were stolen. Some of the stolen property was found on the Applicant when he was arrested at about 4 pm on 31.3.1999 in connection with the attempted robbery. He told the police that the items were handed to him on 29.3.1999 in Sheung Shui by a person called "Lo Tse" whom he had known in Shenzhen. These items included a watch, a black "Timberland" wallet and a number of credit cards in the names of the victims. The Applicant also admitted under caution that he was an illegal immigrant from the Mainland.

3. In his written submission to the court, the Applicant made this complaint. He said

" I am Yeung Kam-leung, aged 26, single, of number 194094. A sentence was passed on me on 5th August, but I refused to accept it and would like to raise the following points :

1. After the Police had read my statement, they fabricated the offence;

2. I was convicted only because of my statement;

3. I was misled by the lawyer.

I pleaded guilty because I was told by the lawyer that I would only be sentenced to 6 months' imprisonment. But the outcome was that I was sentenced to 2 years' imprisonment. The difference is so great that I would like to request a trial de novo. Since I don't know anything about the law, I am in this plight today. I hope Your Lordship would pass a fair judgment on me."

4. The Applicant was legally represented before the deputy judge by Mr Leslie YEUNG Kwok-hung. The prosecution was represented by Mr Mitchell-Heggs.

5. The trial took place on 5.8.1999 and the transcript reads :-

"[Charge 1 read in Mandarin]

[Defendant pleads guilty to 1st charge]

[Charge 2 read in Mandarin]

[Defendant pleads not guilty to 2nd charge]

[Charge 3 read in Mandarin]

[Defendant pleads guilty to 3rd charge]

Mr Mitchell-Heggs : Your Honour, my learned friend was kind enough to forewarn me about these pleas. Of course the plea of not guilty to the 2nd charge is not acceptable to the prosecution, so we propose to invite you to try that charge independently. Normally, after a plea of guilty the summary of facts or agreed facts would be read or put to the defendant.

Deputy judge : I'll do this after we have the trial of the 2nd charge so that I can have a better picture of the whole background."

6. This is a complete record pertaining to the pleas. There is nothing we can see from the transcript to suggest anything of the sort that the Applicant complained of. It is plain that the pleas were tendered voluntarily and freely. The Applicant could not have been misled in anyway. In fact, he chose to plead not guilty to attempted robbery which was followed by a trial resulting in an acquittal.

7. Before us, he made the same complaint that he was wrongly advised by his lawyer that the sentence for handling stolen goods would be only 6 months. He also complained of his illness in prison where he had not received adequate medical treatment and attention. He complained that his prisoner's property had not been returned to him. We have considered all these matters. In our judgment, the Applicant could not have been misled in anyway. He was a free agent all along. The evidence against him in relation to the two charges to which he pleaded guilty was overwhelming and he had no defence. He did not like the sentence that was imposed on him but this has nothing to do with his convictions on the two charges. He has not appealed against sentence, and even if he had, we do not consider that the sentence imposed on him on these two offences is either manifestly excessive or wrong in principle.

8. The application is accordingly dismissed. As the application is completely unmeritorious, we order that 3 months that the Applicant has spent in custody will not be counted towards his sentence.

Representation:

Mr Cheung Wai Sun, D.P.G.C. for DPP/Respondent

Applicant in person