HKSAR v. Yee Hing Chung

CACC 287/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 287 OF 2005

(ON APPEAL FROM DCCC 21 OF 2005)

____________

BETWEEN

____________

Before: Hon Yeung JA and Beeson J in Court

Date of Hearing: 8 November 2007

Date of Reasons for Judgment: 15 November 2007

_______________________________________

REASONS   FOR   JUDGMENT

_______________________________________

Beeson J (giving the Judgment of the Court):

1.This Applicant applied for leave to treat the abandonment of his appeal against sentence as a nullity and, if such leave was granted, would apply for leave to appeal against sentence out of time.  He appeared before us in person on 8 November 2007, his application for Legal Aid having been refused on 2 August 2007.  We dismissed the Application and advised that we would hand down our reasons at a later date; those reasons follow.

FACTS

2.In May 2005 the Applicant and three other men were convicted in the District Court of offences relating to the operation of a sham silver investment company.  The Applicant was sentenced to two years imprisonment for one charge of forgery and to four years imprisonment for one charge of conspiracy to defraud.  His total sentence of imprisonment was four years.

BACKGROUND TO APPLICATION

3.In June 2005 the Applicant applied to a single judge for leave to appeal against conviction and sentence, which application was refused on 18 October 2005.  He renewed his application for leave to appeal on 25  October 2005.  A hearing date was fixed for 14 March 2006, but vacated on the application of the Applicant’s then solicitor.

4.A new hearing date was set for 9 January 2007, but three days before the hearing a Notice of Abandonment of Appeal against Sentence was filed.  Sentence was marked dismissed on 8 January 2007.  The appeal against conviction was heard on 9 January 2007 and was dismissed by the Court  of Appeal.

5.On 20 June 2007 the Applicant filed the present application.

6.In a letter dated 18 August 2007, in support of his application, the Applicant contended that the consequences of abandoning his appeal against sentence were never explained to him and he had simply accepted his solicitor’s advice on the matter.  He filed a Notice of Motion for leave to adduce fresh evidence on 8 October 2007.  That evidence was a medical report on an injured prison inmate to whom he gave help on May 2007, after the inmate sustained head injuries in a fall.

APPLICANT’S SUBMISSION

7.In his letter of 18 August 2007 the Applicant wrote:

“I was advised by the lawyer, Tang Yiu Wing, in the original trial, when I applied for leave to appeal against conviction and against sentence.  But I was advised by Mr Kong Yuen, another lawyer engaged by me to attend the appeal hearing resulting in the withdrawal.  He said there were many doubts in my case and the trial judge did make mistakes.  Since it was very likely for the appeal to be allowed I was requested to withdraw the appeal against sentence.  The seriousness and consequences after the withdrawal had not been clearly explained in the short meeting. Your honour I could only believe and accept what was said by the lawyer who possesses professional legal knowledge because of my limited knowledge on legal issues and procedures.

Basically I was helpless and innocent with no choice left but could only listen to and accept all that he said.”

8.The solicitor, Mr Kong, prepared an affirmation in response to these allegations and filed it on 29 October 2007.  He affirmed he had been engaged by the Applicant to conduct his appeal, and that he had instructed counsel to draft perfected grounds of appeal and attend the appeal hearing.  He had several conferences with the Applicant at Stanley prison.

9.He had been informed by counsel that the total sentence imposed was not manifestly excessive considering the nature of the offences and after taking instructions from the Applicant, he drafted and filed the Notice of Abandonment of Appeal against Sentence.  He had explained the nature and effect of the Notice to the Applicant, emphasising that if the appeal against conviction was unsuccessful sentence could not be enhanced if the appeal against sentence had been abandoned.

10.A conference was held prior to the appeal, which was attended by the Applicant, counsel and the solicitor.  The Applicant had asked some questions about the merits of the appeal and sentence which were answered by counsel, or the solicitor.  Mr Kong denied failing to explain the effect of the Notice of Abandonment.

11.Before us the Applicant, who appeared in person, relied on what he had submitted earlier and referred to a letter he had received from the Department of Justice, confirming that he had given some information to the police, although it had not proved to be of any value.  He sought to rely on that assistance as well as the aid he had given to his fellow inmate as a basis for reducing his sentence.

LEGAL PRINCIPLES

12.The principles which relate to treating a notice of abandonment as a nullity were discussed in HKSAR v Lai Siu-cheung [2005] 1 HKLRD l.  The court has to be satisfied that the abandonment was not the result of a deliberate and informed decision - it must be clear that the Applicant’s mind did not go with the act of abandonment.

13.Here there was no support for the Applicant’s bald assertion that he did not understand what he was told by his solicitor, nor was there any real possibility of his failing to understand why the appeal against sentence was abandoned.  He was given sensible advice by his solicitor which he accepted.  The Notice was filed 3 days before the hearing, written submissions for the appeal having been filed by his own counsel on 19  December 2006 and by the Respondent on 29 December 2006.  Clearly the appeal was abandoned because the sentence was not, as claimed, manifestly excessive.

14.The evidence showed that the Applicant had been heavily involved in setting up the company and, thereafter, in operating the scheme; his role could not be regarded as a minor one.  The total loss to the victims was $650,000.00.  The judge had considered totality and ordered that the sentences be concurrent.  In those circumstances it is unsurprising that the advice of solicitor and counsel was that it would be prudent to abandon the appeal against sentence.

15.In the circumstances we are of the view that the Applicant abandoned his appeal against sentence, after receiving proper advice, in the full understanding of his position and of the consequences of abandoning his appeal.

CONSEQUENTIAL APPEAL AGAINST SENTENCE

16.If leave had been granted to the Applicant to treat as a nullity his abandonment of his appeal against sentence, the Applicant proposed to rely on a letter written by Mr Wong Hon-choi, a fellow inmate.  In that letter he thanks the Applicant for helping him when he fell and injured his head, so that his head bled profusely and he was rendered unconscious.  The Applicant came to help him, called to CSD staff for assistance, supported him when he was unconscious and applied pressure to his wound to stop the bleeding until such time as the ambulancemen arrived.  Mr Wong also thanks the Applicant for his concern and care after his discharge from hospital, states that he regards him as his best friend in the centre and expresses his hope that the Applicant will continue to help more people.

17.The real thrust of the letter appears in the last paragraph when the writer states “I truly hope that you will file an appeal against your sentence on these grounds.  In recognition of your selfless and enthusiastic deeds in helping others I will support your appeal and recommend that you do so.  If everyone in prison and society had such enthusiasm it would be ideal and there would be prosperity.”

18.Another letter, written by Mr Lai Chun-man, another inmate, confirms the incident and states that the Applicant deserves a commendation.  He too expressed the hope that the Applicant would be released from prison as soon as possible so that he could continue to help others.

19.The only ground for his proposed appeal against sentence is that the Applicant’s good deed in assisting his fellow inmate is the basis for a reduction of sentence.  However, while commending the Applicant’s actions, we must observe that his expectation of such a reward for acting in a humane and kindly manner rather detracts from the selfless nature of his good deed in helping a fellow inmate.

20.Although we are sympathetic to his desire for a reduction of sentence, and although we note that the assistance he gave may betoken rehabilitation, we would be unable to use it as a basis for reducing what was a proper sentence.  We do not consider that the assistance the Applicant gave to Mr Wong would justify a reduction of the term of imprisonment imposed by the judge.

21.The application for leave to treat the Notice of Abandonment as a nullity is refused.

22.As we have refused the application to treat his abandonment of sentence as a nullity there is no basis on which we can accede to the Applicant’s submission that his assistance should merit a reduction of sentence.

23.In any event we are of the view that such an application is not a matter for the appeal court.  Any request of that sort if it is to be pursued should, properly, be directed to the administration, perhaps by way of petition to the Chief Executive.

The Applicant, acting in person, present

Ms Evena Chan, SADPP of Department of Justice, for the Respondent