HKSAR v. Leung Chi Kin

CACC 170/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 170 OF 2003

(ON APPEAL FROM DCCC No. 1138 of 2002)

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BETWEEN

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Before:  Hon Cheung JA, Lugar-Mawson J in Court

Date of hearing: 1 March 2005

Date of judgment: 1 March 2005

Date of handing down reasons for judgment: 4 March 2005

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REASONS  FOR  JUDGMENT

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Lugar-Mawson J. (giving the judgment of the Court):

Background

1.On 26 March 2003 the Appellant, Leung Chi Kin, pleaded guilty before Judge Christie in the District Court to two theft charges (charges 1 and 5) and pleaded not guilty to three handling stolen goods charges (charges 2, 3, and 4).  He was tried on those charges and was found guilty of charge 2 and not guilty of charges 3 and 4.

2.On 7 April 2003 the Appellant was sentenced to 2 years’ imprisonment in respect of all three charges on which he was convicted.  He was given a discount of one year in respect of the two theft charges to reflect his guilty pleas to those charges.  The sentences on the theft charges were ordered to run consecutively to each other and the Appellant was ordered to serve his sentence on the handling charge concurrently to his sentence on the first theft charge, thus making his overall sentence one of four years’ imprisonment.

3.On 25 April 2003 the Appellant filed an application for leave to appeal against his conviction and sentence.

4.On 5 August 2003 the Appellant filed a notice of abandonment of his application for leave to appeal against conviction and sentence, stating in support of it that he considered there were insufficient grounds to support his appeal and that he did not wish to waste the Court’s time.  As a result, this Court dismissed his application for leave to appeal against conviction and sentence. 

5.On 3 February 2004 the Appellant filed an affirmation in support of his application for leave to treat his August 2003 notice of abandonment of his application for leave to appeal against sentence as a nullity. 

6.We dismissed that application on 24 September 2004, because we were satisfied that the Appellant’s decision in August 2003 to abandon his application for leave to appeal against both conviction and sentence was deliberate and properly informed and, as his application for leave to appeal had already been dismissed upon receiving that notice of abandonment, we were functus officio and could not entertain his application.  In doing that we said that the Appellant appeared to have a legitimate expectation that his sentence could be reduced.  It is unnecessary for us to outline the basis of that expectation in this published judgment.   

7.In our judgment, we observed that the Appellant’s apparent remedy lay in section 83P of the Criminal Procedure Ordinance, Cap.221, under which the Chief Executive may refer a convicted person’s case to this Court and, upon it being so referred, this Court is bound to treat the reference as an appeal by that person.  We granted the Appellant bail pending appeal in order that he could petition the Chief Executive for such a reference.

The Chief Executive’s reference

8.Following our judgment, the Appellant made this petition to the Chief Executive and on 5 January 2005 the Chief Executive referred the whole of the Appellant’s case to this Court.

9.Miss Monica Chow, the Appellant’s counsel, has confirmed that the Appellant only seeks to have this Court consider his appeal against sentence.

Discussion

10.Our earlier judgment of 24 September 2004 (which should be read in conjunction with this judgment) sets out the facts on which the Appellant was convicted and sentenced.  We see no need to repeat those matters in this judgment.  And, as we have said, it is also unnecessary for us to outline in this published judgment the basis of the expectation that lead the Chief Executive to refer this appeal to us.

11.Ms. Grace Chan, Senior Government Counsel, who appears for the Respondent, very fairly, accepts that there is a sound basis for that expectation.  Ms. Chan also, again very fairly, accepts that by reason of that basis the Appellant is entitled to a reduction in his sentences.

Decision

12.We agree with Miss Chan.  After having regard to decisions of this Court dealing with similar cases, we have decided that the Appellant is entitled to a reduction of the sentences he received in April 2003. 

13.We therefore allow the Appellant’s appeal and reduce his sentences on each of the three charges on which he was convicted to ones of 14 months’ imprisonment.  Mathematically, this represents a reduction of just over 40% from the sentences he received in April 2003.  The order that the Appellant serve his sentences on the two theft charges consecutively to each other still stands, as does the order that he serve his sentence on the handling charge concurrently to his sentence on the first theft charge.  The Appellant’s total period of imprisonment for his three offences is therefore reduced to 28 months’ imprisonment.  Given the time that the Appellant spent in custody awaiting trial, we believe that this will entitle him to an immediate release from prison custody.

Ms Grace Chan, SGC, for the Respondent

Ms Monica Chow, instructed by Messrs Pang, Wan & Choi (DLA), for the Appellant