HKSAR v. Hon Cheung Man

CACC 112/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 112 OF 2007

(ON APPEAL FROM DCCC NO. 180 OF 2007)

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BETWEEN

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Before:  Hon Stuart-Moore VP, Stock JA and Beeson J in Court

Date of Hearing:  11 July 2008

Date of Judgment:  11 July 2008

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J U D G M E N T

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Hon Beeson J (giving the Reasons of the Court):

1.The Applicant (D1), a Chinese national, pleaded guilty in the District Court on 29 March 2007 to 3 charges arising from the theft of 59 Buddhist Pines, by marauders from the mainland.  The charges were handling stolen goods; endangering the safety of others at sea and assisting the passage to Hong Kong of an unauthorised entrant (D2).

2.On the same date, Deputy District Judge Johnny Chan sentenced the Applicant to a total of 68 months’ imprisonment.  The Applicant applied for leave to appeal against sentence on 4 April 2007, but on 28 May 2007 he filed a Notice of Abandonment, in consequence of which his application for leave to appeal against sentence was dismissed the same day.

3.On 19 December 2007 the Applicant applied to have that Notice declared void on the basis that he thought a refusal of Legal Aid meant he was forbidden to appeal against conviction or sentence and he had withdrawn the appeal application “amid helplessness and ignorance”.  This was a misapprehension of the law on the part of the Applicant, but does not show that he did not understand that what he was doing was actually withdrawing his appeal.  Clearly he understood what he was doing and his mind went with the act of abandonment.

4.Accordingly we dismiss this application by the Applicant to treat his Notice of Abandonment as a nullity and, in consequence, his application for leave to appeal against sentence is dismissed.

Mr David Leung, SGC, of Department of Justice, for the Respondent

Hon Cheung Man, Applicant, in person