HKSAR v. TAM TAT YUEN
HTML content
CACC 53/2004
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
criminal APPEAL NO. 53 OF 2004
(ON APPEAL FROM DCCC NO. 1194 of 2003)
____________________
BETWEEN
| HKSAR | Respondent | |
| and | ||
| TAM TAT YUEN (譚達源) | Applicant |
____________________
Before : Hon Stuart-Moore VP and Stock JA
Date of Hearing : 13 January 2006
Date of Judgment : 13 January 2006
______________________
J U D G M E N T
______________________
Stuart-Moore, VP (giving the judgment of the Court):
1. On 2 February 2004, the applicant was convicted, following a trial in the District Court before Judge Whaley, on 5 charges relating to offences committed in 1995 (when he failed to surrender to custody) for which he received a combined total of 4½ years’ imprisonment. He lodged a notice of application for leave to appeal against conviction and sentence in good time but he abandoned both applications on 20 May 2004. However, in an affirmation dated 17 October 2005, the applicant sought to renew his application in regard to sentence and accordingly the matter now comes before us as an application to treat his previous abandonment as a nullity.
2. The applicant explained in his affirmation that he had been wrongly informed by a superintendent in the Correctional Services Department that an application for leave to appeal must be in relation to conviction and sentence when he had only wished to appeal against conviction. When he was refused legal aid, and his family was unable to pay for a lawyer, he gave up both the applications. He later decided, based on information he was given about another case, that he should appeal “out of time” against sentence.
3. We have not been provided with any good reason to accede to this application. It is quite apparent that when the applicant abandoned his sentence application, legal aid having been refused, this was a conscious decision on his part to do so. His mind, in other words, plainly went with his act and, there is nothing which suggests that the applicant had misunderstood the nature of the notice of abandonment or its effect (see: HKSAR v Lai Siu-cheung [2005] 1 HKLRD 1).
4. We would add that if this had been an application for leave to appeal against sentence we would have been minded to increase it. It is clear, in our judgment, that the judge erred in principle as well as on totality in running the sentences for resisting arrest, for possession of a forged identity card and for failing to surrender to custody concurrently with the other sentences imposed for the thefts of motor vehicles.
5. The application is dismissed.
| (M. Stuart-Moore) Vice-Presidentident | (Frank Stock) Justice of Appeal |
Mr Joseph Wong, SGC of Department of Justice, for the Respondent
The applicant, in person