R. v. Tai Chasan Kuo

CACC000577/1995

IN THE COURT OF APPEAL

1995, No. 577
(Criminal)

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

Coram: Yang, C.J., Power, V.-P. and Mortimer, J.A.

Date of delivery of judgment: 24 April 1996

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

J U D G M E N T

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

Mortimer, J.A. (giving the judgment of the Court) :

1. This is an application for leave to appeal against sentence out of time. The applicant was convicted after trial on 9th August 1995 of an offence of burglary by His Honour Judge Lugar-Mawson. Sentence was adjourned to 18th August 1995. On that day, he was sentenced to 21/2 years imprisonment.

The application for leave to appeal out of time

2. On 25th August, the applicant applied for leave to appeal against his conviction. When he did so, he signed a form which set out that the applicant applied for - and then there are choices - leave to appeal against conviction or leave to appeal against sentence. The form also bears this notice:

"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."

On 19th March 1996 this application for leave to appeal against sentence was made by the applicant. Giving reasons for applying out of time, he said:

" ... I am unfamiliar with legal procedure. At first I am labouring under the misconception that I could apply for either an appeal against conviction or reduction in sentencing, hence I only applied for [leave to appeal] against conviction. After consultation, I realised I could apply for both, therefore I now apply for sentence reduction out of time."

3. The time limits for appealing are limits which have to be obeyed. This Court will only allow an application for leave to appeal out of time if good reasons are advanced. In this case, having regard to the notice which the applicant signed on 25th August 1995, he must have been aware that he could appeal against conviction and sentence at the same time. There is no good reason for this Court to allow the application out of time and it is refused.

The application for leave to appeal against sentence

4. We have also, in spite of that, heard counsel on the question of sentence. He advances reasons why this sentence of 21/2 years for this offence was wrong in principle or manifestly excessive.

5. It suffices to say that this was a very carefully planned offence. Five men were involved. The intention was to tie up watchmen and steal $1m worth of goods. The applicant's part was to drive one of the lorries for removal of the goods. Those who were involved were extremely fortunate not to be charged with robbery. That is, of course, not a matter which we take into account. It demonstrates, however, that this was a very serious offence of burglary. The applicant was not the mastermind. The mastermind could have received a much heavier sentence than 21/2 years imprisonment.

6. The judge in sentencing followed the guidelines of this Court in R v WONG Man (1993) HKC80. In spite of the matters that can be advanced on this applicant's behalf; that he is a man of 35 years of age; a family man whose business had run into difficulties; and who was previously of perfectly good character, this was a sentence entirely justified by the nature of the offence and the circumstances of the offender. Had we given leave to apply for a reduction of the sentence, there are no grounds upon which such reduction could have been granted.

Representation:

Mr Toby Jenkyn-Jones (M/s C.K. Tse & Co) for Applicant

Mr D.G. Saw (Crown Prosecutor) for Crown/Respondent