HKSAR v. Chong Kwun Wah

CACC000063A/2002

CACC63/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 63 OF 2002

(On appeal from DCCC 964 OF 2001)

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Coram: Hon Stuart-Moore VP, Stock JA and Gall J in Court

Date of Hearing: 7 November 2002

Date of Judgment: 7 November 2002

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J U D G M E N T

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Gall J (giving the judgment of the Court) :

1.The applicant was convicted on 31 January 2002 in the District Court after trial before His Honour Judge Day of two charges of handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap. 210 and, upon his own plea, of one charge of breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap. 115. He was sentenced to two years and nine months' imprisonment on the 1st charge of handling stolen goods, to three years on the 2nd charge of handling stolen goods and to one month in respect of the charge of breach of condition of stay. Twelve months of the 2nd charge were ordered to run consecutively to the term of imprisonment in respect of the 1st charge, and the sentence in respect of the 3rd charge was ordered to run consecutively to the terms imposed on the 1st and 2nd charges, making a total of three years and ten months' imprisonment in all.

2.On 8 February 2002, the applicant sought leave to appeal against his conviction in respect of the 1st and 2nd charges and leave to appeal against his sentences in respect of all three charges.

3.On 19 July 2002, Mayo VP, having heard the applicant, refused leave in respect of both appeals. He said :

" No satisfactory grounds have been advanced by the applicant concerning his convictions. He simply states that he was doing what his employer told him to do. He said that he was now prepared to make a statement to the police concerning him.

If he is prepared to do this and the information he gives is helpful and leads to any person being convicted of any offence, it is possible that he might receive some reduction of his sentence if executive clemency was to be exercised. This, of course, is separate and independent of this application.

The applicant has also not advanced any satisfactory grounds in support of his application for leave to appeal against his sentences. Both applications for leave to appeal against conviction and sentence are accordingly dismissed."

4.On 24 July 2002, the applicant gave notice of renewal of his application for leave to appeal after refusal by the single judge. In that application which contains home-made grounds, he adds nothing new to the grounds before Mayo VP in respect of the application for leave to appeal his conviction.

5.Before us today, he adds to the grounds of appeal dated 28 July 2002 further material concerning allegations of beatings by the police. Intimidation and threats, which he says, were designed to force him to reveal the name of the person who employed him to guard vehicles in respect of which the handling of stolen goods charges arise. He further says that he gave assistance to the police on two occasions in August, naming the man who was his employer and informing the police that the man had been at the police station on 7 September when the applicant was taken there after arrest.

6.We have heard from Mr Turnbull, counsel for the respondent, concerning the assistance which he might have given to the police and have been told that on two occasions in August of this year he gave a name to the police but that he at no time said the man had been in the police station on the day of the arrest of the applicant. The bare name has been, and could be, of no assistance to the police.

7.In respect of the allegations now made by the applicant concerning his treatment at the hands of the police, we can only say that he was represented by counsel at the trial in the District Court. He was assisted by solicitors instructed by him and assigned by the Legal Aid Department. It is apparent from the Reasons for Verdict of Judge Day that no allegations were made about the police or their conduct at the time of trial, although opportunity was available to the applicant to have brought them to the court's attention. It is significant that those allegations are not contained either in the grounds of appeal which were originally filed by the applicant on 8 February 2002 nor in the second set of grounds to which we have referred that were filed on 24 July 2002.

8.We also take into account the words of Judge Day in his findings when he said :

" You gave a very different version which simply had not been put. ...

...

Yours was an unlikely story told very badly. I did not believe a word of it."

9.In respect of the grounds of appeal relating to the application for leave to appeal against sentence, the only new material is that concerning the 84-year-old mother of the applicant, his daughter's sickness and his own health.

10.There is nothing before us today which warrants a ground of leave to appeal either the convictions or the sentences, and the applications for leave to appeal are dismissed.

11.The application having no merit we order the loss of two months' time served.

Representation:

Mr R.G. Turnbull, SADPP & Mr David Leung, SGC of Department of Justice, for the Respondent

Applicant in person