The Queen v. Mak Chan-pui

CACC000483/1992

IN THE COURT OF APPEAL

1992, No. 483
(Criminal)

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Coram: Litton V-P, Mortimer and Ching JJA

Date of judgment: 7 March 1996

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J U D G M E N T

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Mortimer JA (giving the judgment of the Court) :

1. On 6 November 1992 the applicant pleaded guilty before Deputy Judge Sharwood to offences of rescuing a prisoner from custody, two offences of robbery and one of using firearms with intent to resist arrest. He was sentenced to 16 years imprisonment in total.

2. On 13 November 1992 he applied for leave to appeal against those sentences. But having been refused legal aid, on 9 August 1993 he abandoned his application. By letter to the court dated 9 December 1995, he seeks to treat that abandonment as a nullity so as to pursue his application for leave to appeal against the sentence.

The facts

3. A man called Lo was arrested on 19 July 1991. The applicant was in mainland China. As a result of messages between him and others in Hong Kong he returned from China following a plan with four others to rescue the man, Lo, from custody.

4. On 22 July, in the early hours of the morning, Lo complained of illness and was taken by officers to the Prince of Wales Hospital. Four accused, including the applicant, were waiting in the Hospital, armed with at least three revolvers. When the man Lo went into the toilet with two officers, this applicant and another man rushed in and held those officers at gun point. They obtained Lo's freedom and took with them one officer's revolver.

5. At the same time in an outside waiting room, another member of the gang held up another officer and removed his revolver. The gang then fled in a car with the man Lo. On the way in order to achieve their escape a shot was fired when an officer was chasing the car on foot.

6. The gang escaped to a second floor flat in Shui Tau Tsuen. They remained there with the two police officers' weapons, two more pistols, ammunition, and four hand grenades.

7. A week later, the applicant was arrested by the police when alighting from a taxi nearby. After his arrest, he gave the police considerable assistance. He pointed out the hideout and he warned the police of the arsenal held by the others. In consequence, the police were warned what might happen when they approached the flat to arrest the gang. When they did so a serious gun battle ensued. Two of the gang were shot dead; a grenade was exploded; and another grenade was thrown which failed to explode.

The application

8. In seeking to renew his application for leave to appeal against the sentence, the first point taken by the applicant is that the judge did not take into account the assistance that he had given immediately after his arrest. That is simply wrong. In sentencing, the judge said this:

"I take into consideration the fact that right at the end you did cooperate with the police and render them what might have been invaluable assistance, and I propose to give you, because of those matters, a real and meaningful discount."

There are no grounds upon which we could properly give leave to pursue the application for leave to appeal against the order which the judge made at that time.

9. That leaves the one other matter raised by the applicant. In 1994 he gave evidence against the mastermind in this series of offences. As a result he was convicted and received 18 years imprisonment. Two other convicted persons also gave assistance in the same case. They each received a reduction of one year's imprisonment from their sentences. Those reductions were granted on petition to HE the Governor.

Conclusion

10. As this Court has said on a number of occasions, when assistance is given to the prosecuting authorities by a prisoner after sentence and after the time for appealing has expired, the proper procedure is for such an applicant to petition HE the Governor and not to seek further leave to appeal to this Court. That course is still open to this applicant. There are no grounds upon which this Court ought to allow this application which is refused.

Representation:

Applicant in person

Mr Jackson Poon (Crown Prosecutor) for Crown/Respondent

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