HKSAR v. Liu Po Shing

CACC 27/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 27 OF 2004

(ON APPEAL FROM DCCC NO. 902 OF 2003)

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BETWEEN

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Before : Hon Stuart-Moore VP, Stock JA and Tang JA in Court

Dates of Hearing : 8 June 2005

Date of Judgment : 8 June 2005

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1.On 12 January 2004, the applicant was convicted in the District Court by Judge Sweeney of an offence of using a copy of a false instrument with the intent that it should induce someone to use it as a genuine instrument, contrary to section 74 of the Crimes Ordinance, Cap. 200 and sentenced to a term of five years’ imprisonment.

2.On 28 January 2004 he filed a notice of application seeking leave to appeal against conviction and sentence but he abandoned both applications by notice dated 12 May 2004.  By operation of law therefore the application stands dismissed.

3.He now seeks to revise the applications which were thus abandoned; and accordingly we treat this as an application to treat the abandonment as a nullity.  He gives as his reason for abandonment the fact that he was misled by his trial solicitor and counsel that his appeal had no chance of success; he says in other words, that he was wrongly advised as to those chances.  We have heard him further today on this issue.

4.This is not a ground for treating an abandonment as a nullity.  See HKSAR v Lai Siu Cheung [2004] 3 HKLRD 1.  It is perfectly clear that when he abandoned his applications, he was well aware of the nature and effect of the act and accordingly this application must fail.

Ms Mary Sin, SADPP, of the Department of Justice for the Respondent

Applicant, Liu Po Shing, in person