The Queen v. Ching Toi Ping

CACC000517A/1988

-------------------------------

Coram: Hon Cons, V -P, Kempster & Macdougall, JJA

Date of Hearing: 7 September 1989

Date of Judgment: 7 September 1989

---------------------

J U G M E N T

---------------------

Kempster, JA (giving the Judgment of the Court)

1. On 3rd November 1988, on the verdict of a jury, Ching Toi-ping was convicted by Hopkinson J. of handling stolen goods and of driving a conveyance without authority. The following day he was sentenced to two and a half years imprisonment on the first count and to six months imprisonment on the second to run consecutively. The trial judge took his previous good character into account. Ching filed an application for leave to appeal against the convictions but abandoned it on 25 May 1989. On 9 June, some six months out of time and following successful appeals against sentence by two co-defendants, he filed a similar application despite failure to comply with sections 83I (1) and 83Q (2) of the Criminal Procedure Ordinance (Cap 221). His application for extension of time, made pursuant to section 83Q (3) of the Ordinance, was dismissed by a single Justice of Appeal on 11 July. He now renews the application to extend time before the full court pursuant to section 83Y (3).

2. While it might have been thought that the success of his co-defendants prompted Ching's initiative the grounds of appeal bear an earlier date and the affirmation which he swore in support of his section 83Q (3) application says only that he was advised by counsel to abandon the application for leave to appeal against conviction and to apply for leave to appeal against sentence instead. It does not explain why he did not make such application, in the alternative, at the outset nor make any reference to the merits of any such application should we permit him to make it. Merits may be a factor for our consideration in the exercise of discretion.

3. On the form which Ching completed when originally applying for leave to appeal against conviction there had appeared above his signature, in English and Chinese, the words

"It has been fully explained to me that if I appeal against both conviction and sentence at the same time, one will not have any adverse effect on the other."

If a person convicted of crime wishes up seek the intervention of this Court-he must make application within 28 days unless he can demonstrate a good reason why discretion should be exercised in his favour to extend the period. In our opinion Ching has signally failed so to do. It is to be observed that the grounds he is minded to advance and. which were advanced on his behalf today relate to considerations personal to other defendants but in no way to him.

4. On about 1 March 1988 the applicant drove away a van in Ngau Tau Kok without the consent of the owner. He used it to convey building materials valued at HK$247,000 from wan Chai, where such materials were stolen in the early hours of the morning, to an industrial building in Kwon Tong. There he helped to unload the goods and to negotiate their sale to the owner of that building; a codefendant at trial. He-received a cheque for HK$13,410 for his pains. Finally he drove the van away and abandoned it. Obviously the whole enterprise had been concerted between all three defendants and others.

5. As far as Ching Toi-ping is concerned the consecutive sentences of two and a half years and six months, though possibly on the high side, cannot legitimately be criticised as excessive so as to warrant our concern. The totality of three years was in no way incommensurate with his overall criminality. The renewed application to extend time, persistently advanced on his behalf by Mr. James Lee, is therefore refused.

6. Before parting with this matter we should observe that Note 1 to Form XIII set out in the Criminal Appeal Rules and served on all parties reads

"A renewal to the court after refusal by the judge may well result in a direction for the loss of time if the Court comes to the conclusion that there was no justification for the renewal. If the judge has already directed that you lose time the Court may direct that you lose more time."

There is a similar note in Form XII. We are not presently satisfied, and Mr Coghlan for the Crown has not felt himself in a position to advance argument in this regard, that the somewhat obscure terms of section 83W of the Criminal Procedure ordinance give us such jurisdiction as these forms suggest. We invite the Attorney General to consider the wording both of these forms and of the section and to seek, on an appropriate occasion, to raise the matter before this Court for a definitive ruling or possibly, if he takes a certain view, to initiate legislation to clarify the terms of the section.

Representation:

Mr James Lee (Messrs C.K. Mok & Co.) for Applicant

Mr Coghlan (Crown Prosecutor) for Respondent