HKSAR v. Ko Yeung

CACC 267/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 267 OF 2008

(ON APPEAL FROM DCCC 511 OF 2008)

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BETWEEN:

Before: Hon Yuen JA, Tong and Saw JJ in Court

Date of hearing and decision: 21 August 2009

Date of Reasons for decision:  1 September 2009

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REASONS FOR DECISION

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Hon. Yuen JA (giving the Reasons for Decision of the Court):

1.On 21 August 2009 we refused the Applicant’s application for leave to appeal against conviction out of time and proceeded to deal with his application for leave to appeal against sentence, which we also dismissed (see separate Judgment). Our reasons for refusing him leave to appeal against conviction out of time are as follows.

2.The Applicant was arrested on the morning of 16 May 2008. He was charged with conspiracy to burgle and illegal entry under the name of Ko Yeung (高楊) also known as Li Keung (李強). He had initially sought to claim that he was also known as Nie Xi Tai (聶喜太) and that he had entered Hong Kong under a Two-way Permit on 31 March 2008 which he had lost four days later, and which had expired by the time of his arrest (so that he was only an over-stayer). However when the prosecution indicated that it could not find any travel records in relation to the alleged Two-way Permit, the Applicant abandoned his claim, as evidenced by a Chinese document of instructions to his legal representative which he signed on 14 July 2008.

3.On 17 July 2008 the Applicant pleaded guilty to conspiracy to burgle and illegal entry.

4.On 7 August 2008 the Applicant applied for leave to appeal against sentence.

5.In June 2009 notices of motion were filed on behalf of the Applicant to adduce fresh or new evidence. These were in support of his application for leave to appeal against sentence.

6.On 31 July 2009 the Applicant’s counsel sent his written submissions to the Court. In para. 5 of the submissions, counsel wrote:

“The Applicant accepts that he cannot now challenge the plea of guilty he had entered in respect of the charge of illegal remaining as he entered that plea after receiving legal advice on the pros and cons”.

7.On 14 August 2009 (7 days before the hearing of the application for leave to appeal against sentence on 21 August 2009), the Respondent sent his written submissions to the Court and to the legal representatives for the Applicant. In these submissions the respondent referred to the Applicant’s failure to apply for leave to appeal against conviction, the deadline for which has long expired.

8.On 21 August 2009 a few minutes before the court convened to hear the application for leave to appeal against sentence, the Applicant’s legal representatives produced an application for leave to appeal against conviction out of time. There was no affirmation in support.

9.Counsel for the Applicant was unable to give any reason for the gross delay, especially as the Applicant had had legal representation for at least 9 months, and when the Respondent’s submissions on the matter had been provided to them 7 days before the hearing.

10.Nor was counsel for the Applicant able to provide any grounds for the appeal against conviction. He accepts that the Applicant’s plea was an unequivocal one. Nor was this a case where the Applicant had misunderstood the law, as he had been advised by legal representatives before he pleaded guilty. For reasons set out in our Judgment in his application for leave to appeal against sentence, we also rejected the fresh or new evidence as being far from credible.

11.For those reasons, we refused leave to appeal against conviction out of time.

Mr P Y Lo instructed by Yaddy Cheung & Co assigned by the Director of Legal Aid for the Applicant.

Mr Beney Wong SPP of the Department of Justice for the Respondent.