HKSAR v. Wong Fat Shun

CACC 43/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 43 OF 2006

(ON APPEAL FROM HCCC NO. 174 OF 2005)

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BETWEEN

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Before: Hon Lunn JA and Hon McWalters J in Court

Date of Hearing: 1 June 2012

Date of Judgment: 1 June 2012

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J U D G M E N T

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Hon McWalters J (giving the judgment of the court):

1.The applicant seeks leave to appeal against sentence out of time. He was convicted after trial of conspiracy to manufacture a dangerous drug on 23 January 2006 and sentenced by Beeson J to 22 years imprisonment. The offence of which he was convicted took place between September and December 2004 – some seven and a half years ago. The applicant, together with his two co-accuseds, appealed their convictions. One of the co-accused also appealed his sentence. The applications of all three convicted persons were dismissed on 22 May 2008 – over four years ago.

2.The applicant then applied for leave to appeal to the Court of Final Appeal but his application was dismissed on 7 July 2011.  On 25 August 2011 he then filed the present application for an extension of time in which to appeal his sentence.  This application is out of time by over six years.

3.In HKSAR v Lee Sin Seang CACC 341/2010 Chu J summarised the principles relevant to an application for leave to appeal out of time.  She said at paragraph 5:

“The relevant principles that the court has to consider in an application for time extension were set out in R v. Wong Kai Kong [1990] 1 HKC 279, 280H-281D. They are: (1) The court has to consider the period of delay, the reasons for the failure to make the application timeously and the bona fides of the applicant. Substantial grounds must be shown for the delay before the court will grant the indulgence sought. (2) The longer the delay, the more onerous is the duty of the applicant. (3) It is open to the court to look at the grounds of appeal to see if they are impressive and to check that refusing leave to appeal will not shut out a substantial and plainly arguable ground of appeal.”

4.The applicant’s explanation for the delay is that he wished to pursue his appeal against conviction and exhaust all the appellate processes in relation to that appeal before appealing his sentence.  This is not a good reason for the delay.  Applications for leave to appeal conviction and sentence are commonly heard together and that in fact is what happened in respect of one of the applicant’s co-accused.  The applicant was represented both at trial and on his conviction appeal and it defies belief that he would not have considered at the time of his conviction the merits of an appeal against sentence.  His explanation not only lacks substance it also lacks credibility.

5.Nevertheless we have looked at his proposed grounds of appeal to see whether they are substantial and plainly arguable.  Effectively his complaint is that he played only a minor role in the joint enterprise and should, as a consequence, have been punished less severely than his co-accuseds.

6.Beeson J did in fact distinguish between the roles of each accused. She sentenced the person whom she regarded as the mastermind to 24 years imprisonment, the applicant to 22 years imprisonment and the other accused to 20 years imprisonment.  Beeson J described the applicant as a companion to the mastermind and as providing watching or bodyguard duties for him.  The manufacturing of the cocaine took place on a fish raft and the role of the other accused was simply to make this available to the mastermind and to provide minor housekeeping duties in respect of it.  The trial judge’s assessments of each convicted person’s culpability were perfectly proper ones that she was entitled to make on the evidence before her.  The quantity of cocaine manufactured was 2½ kilogrammes and the sentences imposed were in accordance with the Lau Tak Ming guidelines and cannot be said to be excessive.

7.The application for leave to appeal out of time is dismissed.

Ms Hermina Ng SPP, of Department of Justice, for the respondent

Mr Wong Fat Shun, the applicant in person