HKSAR v. Zhang Chang Chun

HCMA1151/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1151 OF 2005

(ON APPEAL FROM KCCC 2938 OF 2005)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 20 February 2006

Date of Judgment : 20 February 2006

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J U D G M E N T

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1.The present applicant originally appealed together with his two accomplices against their conviction for conspiracy to obtain property by deception.  The facts of the case amounted to what has become known as a street fraud.  The two accomplices succeeded in their appeal and their convictions were quashed and sentence set aside by my judgment of 13 January 2006.

2.The applicant was not the subject of that judgment as he had abandoned his appeal on 28 December 2005.

3.The basis of the accomplices succeeding in their appeal was simply that the evidence against them (and the applicant) being the perpetrators of the street fraud was by way of a dock identification when in the circumstances of the case an identification parade could and should have been held : see HCMA1151/2005 Judgment, 13 January 2006.

4.The applicant now seeks to renew his appeal against conviction on the same ground.  I allow him to treat the abandonment of his appeal against conviction as a nullity for the simple reason that when he abandoned that appeal he was unaware that his appeal would inevitably succeed.

5.Accordingly I allow the appeal for the reasons given in the previous judgment.  The applicant’s conviction is quashed and his sentence is set aside.

6.The confiscation order made by the magistrate at the time of the applicant’s conviction is also set aside and the wallet and monies, the subject of that order, shall be returned to him.

Mr Harish Melwaney, SGC of Department of Justice, for HKSAR

The Applicant, in person (D1)