HKSAR v. IU KAM TONG, JULIAN

CACC000556/2002

CACC 556/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 556 OF 2002

(ON APPEAL FROM DCCC 808 of 2002)

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BETWEEN
	HKSAR	Respondent
	AND
	IU KAM TONG, JULIAN (also known as YAO CHIN TANG)	Applicant

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Coram: Hon Stuart-Moore V-P and Stock JA in Court

Date of Hearing: 7 May 2003

Date of Judgment: 7 May 2003

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1 This applicant seeks to revive an application for leave against sentence, an application which he abandoned in January this year.

2 In October 2002, he pleaded guilty before HH Judge Barnes in the District Court to five offences. On 10 March 2002 he was found in Nathan Road with fourteen false credit cards, and that led to a charge of possession of those cards with intent to use them as genuine. He also had on his person a quantity of the drug "ice". That was the second charge.

3 Whilst on bail for those offences, he committed three further offences on 27 June 2002, in the company of another man, who was D2 at trial. On this occasion, the applicant used credit cards to try to obtain goods at Lane Crawford. That was charge 3. He had in his possession five further cards, all false (charge 5); as well as a Part I poison (charge 6). D2 tried to use two credit cards to obtain goods and there was against him only one charge, namely, charge 4.

4 The judge sentenced the applicant to a total of two years and eight months' imprisonment; and the other defendant to a term of 15 months' imprisonment. She took a starting point of three and a half years' imprisonment and then took into account his pleas of guilty; and other suggested mitigation in relation to his act in saving a fellow prisoner from suicide. She then enhanced the sentences by 25% to give effect to the offences' prevalence, under the Organised and Serious Crimes Ordinance.

5 He was sentenced on 23 October 2002. He filed his application for leave to appeal against sentence on 5 November 2002 but filed notice of abandonment on 7 January 2003. About one week later, the applicant sent a letter by which he sought to revive his application in respect of sentence; and that is how the matter now comes before us. He there said that he had received news that his grandmother was very ill and may pass away at any time before the end of this year, and he wants to be by her side. In the same letter he refers to the sentence itself and puts forward reasons why it should, on the merits, be reduced: a number of factors including a suggested unfair disparity between his sentence and that of the D2.

6 There is no question but that the applicant's act when he abandoned his application, legal aid by then having been refused, was an act which was deliberate and informed. The fact of his grandmother's illness provides no ground for treating the abandonment as a nullity; nor, in any event, would it have had any impact on the merits of the appeal against sentence. He complains to us today that the two-month sentence imposed in relation to charge 6 (possession of the Part I poison) was too high but we note in that regard that that sentence was ordered to run concurrently with the rest. The overall sentence was, if anything, on the light side and the disparity between it and the sentence on D2 is readily explicable by the facts which we have recited.

7 The application is therefore dismissed.

(M. Stuart-Moore)	(Frank Stock)
Vice-President	Justice of Appeal

Representation:

Applicant in person

Mr P K Madigan, SGC of the Department of Justice for the Respondent