HKSAR v. Nguyen Manh Cuong

CACC186/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 186 OF 2008

(ON APPEAL FROM DCCC 10 OF 2008)

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Before : Stock JA, McMahon and Wright JJ in Court

Date of Hearing : 22 January 2009

Date of Judgment : 22 January 2009

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J U D G M E N T

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Hon Wright J (giving the judgment of the Court):

1.On 6 May 2008 the applicant was convicted, on his own pleas, by Deputy Judge R Chan in the District Court of two charges, one of theft and one of attempted theft, and was sentenced to an aggregate period of imprisonment for 26 months. 

2.By notice dated 23 May 2008 the applicant sought leave to appeal the sentences.  On 9 September 2008 he signed a standard form notice of abandonment in which it was stated clearly that he abandoned all further proceedings in relation to the appeal.  As a consequence of that, the appeal was marked dismissed.

3.He now seeks leave for that abandonment to be treated as a nullity, saying in an application dated 19 September 2008:

"I heard that it usually took a year’s time to handle the application for leave to appeal and I did not want to worry about the case any more, therefore I filed an application to the Correctional Services Department to abandon the appeal in the morning on 9 September 2008.  Later, in the afternoon the same day, I was informed by the Correctional Services Department that my application for leave to appeal would be heard on 24 September 2008.  I have never expected that my appeal could be heard within four to five months, otherwise I would not have thought of abandoning the appeal."

4.It is plain that the applicant, understanding the nature and consequences of the abandonment, made a conscious and informed decision to abandon the application: the reason behind that decision was the delay in hearing which he anticipated.  We are satisfied that the mind of the applicant went with the act of abandonment. (see HKSAR v LAI Siu Cheung [2005] 1 HKLRD 1.

5.The consequence is that the abandonment cannot be a nullity. The application is dismissed.

Peggy Lo, SPP, Department of Justice, for Respondent

Applicant in person