HKSAR v. Cheng Nga Kwan and Another

CACC 461/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 461 OF 2003

(On Appeal From District Court Criminal Case No. 169 of 2003)

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BETWEEN

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

Date of Hearing : 21 July 2005

Date of Judgment : 21 July 2005

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JUDGMENT

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Hon Cheung JA (giving judgment of the court) :

The applications

1.There are two applications before us.  The first is an application by the 3^rd applicant to treat her notice of abandonment dated 1 November 2004 of an application for leave to appeal as a nullity and the other is an application by the 8^th applicant for leave to appeal against sentence out of time.

Facts

2.The applicants together with eight others were the defendants in a conspiracy to defraud case tried by HH Judge Line.  They were all convicted and sentence was imposed on 21 October 2003.  Seven of these defendants lodged an appeal, one against conviction while the others were against sentence.  This Court (Cheung JA, Gall and Lunn JJ) allowed their appeal on 14 December 2004 with written reasons handed down on 12 January 2005.

3.The facts are fully set out in the previous Reasons for Judgment and it is sufficient to mention that the case was concerned with a loco London gold fraud in which two fictitious companies were set up to defraud victims.  The defendants played fictitious roles in these companies such as decoys, lecturers and managers.  The total loss by the victims was over $2 million.  Three victims were involved with the first company called Masterland Holdings Limited (‘Masterland’) and they lost $480,000.  The second company was Royal Asia International Holdings Limited (‘Royal Asia’).  Six victims were involved.  The amount lost was about $1.6 million.  

The 3rd applicant

4.The 3^rd applicant was described by the judge as playing a significant role in both companies both as a lecturer and as a front part manager.  She faced two charges but pleaded guilty at the outset of the trial and gave evidence for the prosecution.  The judge took a starting point of five years’ imprisonment for each of the two charges and reduced each by half because of her guilty plea and assistance in the prosecution.  This resulted in a sentence of two and a half years for each of the offences.  Six months of the 2^nd charge was ordered to be served consecutively to the 1^st charge resulting in a final sentence of three years’ imprisonment.

5.The 3^rd applicant lodged an application for leave to appeal against sentence on 6 November 2003.  However, she abandoned it on 1 November 2004 by filing a notice of abandonment and the application was accordingly dismissed by the Court upon receipt of the notice on the same date. 

6.The 3^rd applicant explained that she abandoned the application because she feared her sentence would be enhanced on appeal after her former lawyer told her that there were insufficient merits in her appeal.  She was also persuaded by her mother who at that time had cancer not to proceed with the appeal.  As the other defendants had their sentences reduced on appeal, she now asks for her appeal to be reinstated. 

7.A notice of abandonment is a solemn act which causes the appeal to be dismissed.  Nevertheless, the court has a discretion to treat the abandonment as a nullity and allow the appeal to be reinstated if the abandonment did not arise from a deliberate and informed decision of the accused.  In other words, if he did not have the necessary intention to abandon the appeal.  However, if an accused was mistaken on the prospects of his appeal it cannot be said that he did not have the intention to abandon the appeal : see R. v. Peters (1973) 58 Cr. App. R. 328.  This is the situation here.  Although the 3^rd applicant was mistaken about the prospects of her appeal, she did have the intention to abandon the appeal.  Hence we cannot accede to her present application to treat the abandonment as a nullity. 

8.We have sympathy for the 3^rd applicant.  Considering what we had said in the previous decision the proper starting point for her sentence should have been four years’ imprisonment.  She also assisted in the prosecution.  Her only remedy now is to seek a remission of sentence from the Chief Executive or ask for a reference by the Chief Executive pursuant to section 83P of the Criminal Procedure Ordinance. 

The 8th applicant

9.The 8^th applicant pleaded guilty to one charge and was sentenced to three years’ imprisonment.  This was based on a starting point of four and a half years and reduced by one third because of the guilty plea.  She was a decoy in one of the companies.  She explained in her application that as she had pleaded guilty she did not consider an appeal.  She did not believe that her sentence would be reduced on appeal.  She has now made the application because the other defendants who acted as decoys had their starting point reduced to four years.

10.We consider that in her case four years should be the appropriate starting point.  Mr. Gavin Shiu, counsel for the respondent, accepts this.

11.We accept the 8^th applicant’s explanation for the delay.  We will allow the application and treat it as the appeal proper and allow the appeal.  We take four years as the starting point, reduced it by one third because of the guilty plea and a sentence of two years and six months is substituted.

Mr. Gavin Shiu, SADPP of Department of Justice, for the respondent

3^rd applicant, in person, present

Mr. Paul K. N. Wu, instructed by M/s Francis Kong & Co. for the 8^th applicant