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HKSAR v. WONG KWAI WING

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5072-EN-2003-02-11

HKSAR v. WONG KWAI WING

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CACC000514A/1991

CACC514/1991

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.514 OF 1991

(ON APPEAL FROM HCCC 348 OF 1990)

--------------

BETWEEN
	HKSAR	Respondent

	AND

	WONG KWAI WING	Applicant

--------------

Coram: Hon Stuart-Moore VP, Stock JA and Gall J in Court

Date of Hearing: 11 February 2003

Date of Judgment: 11 February 2003

----------------------

J U D G M E N T

----------------------

Gall J (giving the judgment of the Court) :

1. The applicant seeks an order that his abandonment of his application for leave to appeal against sentence be treated as a nullity.

2. On 15 October 1991, the applicant was convicted after trial in respect of one count of trafficking in a dangerous drug and one count of possession of a dangerous drug for the purpose of unlawful trafficking. On 18 October 1991, he was sentenced in respect of the first count to 20 years' imprisonment and in respect of the second count to 22 years' imprisonment, the sentences to be served concurrently.

3. On 13 November 1991, he applied for leave to appeal against both convictions and sentences. His applications were within time. The applications for leave to appeal conviction and sentence were heard on 17 September 1992. He was unrepresented and the matter was adjourned for him to seek legal representation.

4. His applications again came before the court on 24 February 1993. The applicant was then represented by counsel. At that hearing, in his presence, the application for leave to appeal again sentences was abandoned by his counsel. His application for leave to appeal against conviction was heard and dismissed on 22 June 1993.

5. On 9 July 1993, he applied for leave to appeal against his sentences out of time. The application was made on the basis that the counsel representing him on 24 February 1993 had, without his consent, abandoned his application for leave to appeal his sentences.

6. On 7 March 1994, he abandoned this application for leave to appeal against his sentences out of time.

7. On 6 September 2002, he applied for leave to treat his abandonment as a nullity and applied for leave to appeal against sentence.

8. The grounds on which he applied are that in respect of the first instance of abandonment, his counsel, on 24 February 1993, abandoned his application for leave to appeal without his consent. In respect of the second claimed instance of abandonment, on 7 March 1994, his reasons for reapplying for leave were that his family lacked money and, having been denied legal aid, he abandoned his application in their financial interest.

9. The abandonment of his application on 24 February 1993 the applicant admits was made in open court in his presence and in circumstances where he was fully aware of what was taking place and where he was in a position to bring to the attention of his legal representative and to the court any objection he had to the abandonment. He did not do so.

10. The application for leave to appeal out of time made on 9 July 1993 was misconceived and ought to have been an application to treat his earlier abandonment as a nullity. That application was abandoned by the applicant by his own desire and for his own reasons.

11. We are satisfied that the circumstances of the abandonment of his application on 24 February 1993 are such that his properly advised mind went with the act. That is to say the abandonment of the application was made in his presence, with his knowledge and with his informed consent. It was an effective and proper abandonment.

12. We are further satisfied that his second application for leave to appeal his sentences even if it were to be treated as an application to treat the earlier abandonment as a nullity was properly withdrawn by him of his own volition and properly for his own reason.

13. The application now before us to treat the abandonment of the application for leave to appeal sentences made on 13 November 1991 and abandoned on 24 February 1993 is without merit and is refused.

(M. Stuart-Moore)	(F. Stock)	(T.M. Gall)
Vice-President	Justice of Appeal	Judge of the Court of First Instance

Representation:

Mr W.S. Cheung, DPGC of Department of Justice, for the Respondent

Applicant in person

CACC000514/1991

IN THE COURT OF APPEAL	1991, No. 514
	(Criminal)

BETWEEN
	THE QUEEN

	AND

	CHEUNG Sum-man (Al)

----------------------------------------

Coram: Hon. Yang, CJ, Silke, V-P & Bokhary, J

Date of Hearing: 17 September 1992

Date of Judgment: 17 September 1992

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J U D G M E N T

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Hon. Yang, CJ:

1. This is the judgment of the Court.

2. Cheung Sum-man (Al) pleaded guilty before Mr. Justice Leong to one count of trafficking in a dangerous drug, and was, upon the conviction after trial of his co-accused Wong Kwai-wing (A2) upon the same offence, sentenced to imprisonment for 15 years. He now seeks leave to appeal against sentence.

3. The facts against Al are that in the morning of 24th August 1990, he went to the Dor Cheuk Restaurant to meet one Tse Man-sum as arranged. Also present at the Restaurant were A2 and another man. An arrangement was made for Tse to give one piece of No. 4 heroin for which Al would pay Tse $50,000 the next day and the balance of another $50,000 one week later. A2 then left the Restaurant after having been told by Tse to collect the goods. A2 walked to Nga Tsin Long Road near Nga Tsin Wai Road where he met Al. A2 handed to Al the paper bag indicating that the goods were inside. A2 then told Al to leave by minibus. Al did as he was told and boarded a minibus for Shamshuipo. He alighted at the junction of Wong Chuk Street and Yu Chow Street, carrying the paper bag with him.

4. At Wong Chuk Street, Al was intercepted by two police offices. Upon finding the substance in the paper bag, he was arrested and cautioned and taken to the police station. The substance found in the paper bag was analysed and found to be 699.92 grammes of a mixture containing 607.49 grammes of salts of esters of morphine.

5. A1 had three previous convictions: one in 1974 for an unrelated offence, one in 1979 respecting three offences, one of which was possession of dangerous drug for which he was bound over, and lastly, in 1985, he was sentenced to five years' imprisonment for doing acts preparatory or for the purpose of manufacturing of.dangerous drug.

6. In passing sentence the learned judge, after taking into account a very full plea in mitigation, treated trafficking in a dangerous drug on the same basis as possession for the purpose of unlawful trafficking in a dangerous drug. Noting Al's previous convictions, the judge took into account Al's plea of guilty. He also took into consideration the fact that A1 had given evidence for the prosecution against A2 and had given assistance to the police. The learned judge however observed that when an accused was caught red-handed, a plea of guilty would not result in a reduction of sentence greater than that given to one who had not been caught red-handed. Taking into account all the circumstances and adopting 20 years as a starting point, the judge gave a discount of 25% and arrived at the sentence of 15 years.

7. In seeking to appeal against the sentence, counsel for A1 argues: (1) that the discount given was insufficient, (2) that the judge had failed to take sufficient account of Al's plea of guilty his assistance to the police, his offer to give evidence ofr the prosecution at D2's trial and his actually giving evidence at D2's trial and (3) that the sentence is manifestly excessive.

8. We have admitted into evidence before us a letter from Mr. Jenkyn-Jones, the prosecuting counsel, addressed to Al's legal representative. The letter is dated 3rd August 1992, i.e. some ten months after conviction, and it says that at the trial of A2, A1 gave evidence for the Crown but in the final analysis, his evidence was not helpful to prosecution case. It goes on that this was not in fact his fault, nor was it deliberate or as a result of malice. A1 did come up to proof and was not hostile, reluctant, or compromising in his evidence.

9. Counsel for A1 also seeks leave to produce before us two witness statements made by A1 to the police, ond dated 19^th July 1991 and the other 26th July 1991.

10. Having heard counsel and admitted the letter written by Mr. Jenkyn-Jones, we are of the view that we should not admit the two statements in question, I seems clear to us that the statements which counsel for A1 seeks to produce before us simply indicate that A1's evidence at A1's trial is not inconsistent with the statements he had given to the police and both were available at A1's trial.

11. We have considered the facts of the case and in particular the assistance this applicant had given to the authorities. We are of the view that in the light of this assistance, a more generous discount could have been given by the trial judge to the applicant. In all the circumstances, we are of the view that a proper sentence in this case is one of 13 years.

12. We allow the application, treat the hearing of the application as hearing of the appeal and allow the appeal. We reduce the sentence from one of 15 years to 13 years.

	T. L. Yang
	Chief Justice

Representation:

Mr. Casewell for Crown/respondent

Mr. R. Murray (DLA) for A1