HKSAR v. Chan Kwok Ming

CACC 339/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 339 OF 2001

(ON APPEAL FROM HCCC NO. 74 of 2001)

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BETWEEN

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Before : Hon Stuart-Moore VP, Stock JA and Lunn J

Date of Hearing : 9 October 2007

Date of Judgment : 9 October 2007

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.The applicant was convicted after trial before Gall J and a jury on a count of attempting to discharge loaded arms at two named police officers with intent to prevent the lawful detainer of himself, contrary to section 17(c) of the Offences against the Person Ordinance, Cap. 212 (count 1).  He had earlier pleaded guilty to a 2^nd count of carrying a 9 mm calibre pistol with intent to commit an arrestable offence while he had the firearm with him, contrary to section 18(1) of the Firearms and Ammunition Ordinance, Cap. 238.  The applicant received concurrent sentences of 18 and 8 years, respectively, on these counts.

2.On 11 September 2001, the applicant filed a notice applying for leave to appeal against conviction on the 1^st count alone.  However on 14 December 2001, the applicant filed a notice of abandonment and, as a result, this leave application was formally dismissed on 17 December 2001.

3.Then, on 27 December 2001, the applicant filed an application for leave to appeal against his sentence out of time and again followed this by filing a notice of abandonment, this one dated 15 March 2002.  This leave application was formally dismissed on the same day.

4.The matter now comes before us, over 5½ years later, as an application to treat the abandonment of his earlier application for leave to appeal against conviction as a nullity.  The reasons are given in the applicant’s affidavit dated 24 April 2007 in which he states:

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I had once lodged an application for Legal Aid, which was rejected. At that time, I did not have money to engage a private lawyer. I thought it might put me in a disadvantageous position without a legal representative in the appeal proceeding of the case. Therefore, I abandoned the appeal application. Recently, I finally realized that I could represent myself to have an opportunity for a fair appeal without a legal representative. Therefore, I re-apply for an appeal, and I wish the Court would give me a chance.”

5.There is no suggestion contained in the affidavit or in anything said to us by the applicant in these proceedings that the applicant was unaware of the nature or effect of his act of abandonment.  Accordingly, this application is dismissed.

Mr John Reading, SC, DDPP and Mr Paul Ho, SGC, of the Department of Justice, for the Respondent.

The Applicant, in person.