HKSAR v. Ho Chun Cheong

CACC 9/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 9 OF 2011

(ON APPEAL FROM HCCC NO. 136 OF 2009)

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BETWEEN

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Before: Hon Stock VP, Fok JA and McWalters J in Court

Date of Hearing: 23 August 2011

Date of Judgment: 23 August 2011

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JUDGMENT

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Hon Fok JA (giving the Judgment of the Court):

1.This is an application for leave to appeal out of time.

2.On 2 July 2009, the applicant pleaded guilty to, and was convicted of, one count of trafficking in a dangerous drug.  He was sentenced by Deputy High Court Judge Mackintosh (as the late Mackintosh J then was) to 6 years and 4 months’ imprisonment.

3.By his notice of application for leave to appeal dated 10 January 2011, the applicant applied, out of time, for leave to appeal against both conviction and sentence.

4.He has since given notice of abandonment of his application to appeal against conviction.  That notice, dated 25 July 2011, indicates that his application to appeal against sentence still proceeds.

5.The applicant has today indicated that he wishes to abandon his application in light of the refusal to him of legal aid to pursue his application for leave to appeal against conviction.  Notice of refusal of that application for legal aid was filed by the Director of Legal Aid on 18 August 2011.

6.However, as the applicant is appearing before us in person, we propose, as a matter of fairness to him, to express our view on the application.

7.As will be apparent, the application was made more than 17 months out of time but no explanation has been given in the papers for the failure to make the application within time.

8.The principles governing applications for leave to appeal out of time were stated by this court in R v Wong Kai Kong [1990] 1 HKC 279 and R v Ho Chin Ming, unrep., CACC 109/1991, 23.10.91.  In considering whether an applicant should be granted the indulgence of an extension of time, it is first necessary for the court to consider not only the reasons advanced for the failure to apply timeously but also the period of time which has elapsed between the conviction and application.  In addition, it is also appropriate for the court to look at the proposed grounds of appeal and to check that by refusing leave it is not shutting out a substantial and plainly arguable ground of appeal.

9.In the context of a lengthy delay of 17 months, as in this case, it is incumbent on the applicant to provide an acceptable reason for the delay if there is to be an extension of time.  As mentioned above, however, there is no explanation in the papers for the delay in applying for leave to appeal.  Nor was any substantial reason advanced by the applicant in his oral submissions to us today.  Although the applicant sought to explain the delay by reference to his application for legal aid, that application does not appear to have been made until after his notice of application for leave to appeal was filed on 10 January 2011, and so does not provide any explanation for the late application.

10.Nevertheless, we have also considered whether there is anything in the papers that might suggest that there is any substantial or plainly arguable ground of appeal in the intended appeal against sentence.

11.We see none.

12.The Judge’s starting point of 9½ years’ imprisonment was wholly consistent with the relevant sentencing guidelines.  He was right to apply a discount of one-third for the guilty plea.  No further discount was called for or justified.

13.We are satisfied there is nothing in the papers that indicates there is any merit in the proposed appeal.

14.In the circumstances, the applicant’s application to extend time is refused.

Mr Ho Chun Cheong, the Applicant in person

Mr William Tam, Acting DDPP of the Department of Justice, for the Respondent