HKSAR v. AU CHUN WAI

CACC 437/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 437 OF 2004

(ON APPEAL FROM DCCC NO. 922 of 2004)

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BETWEEN

  HKSAR Respondent
  and  
  AU CHUN WAI (區增偉) Applicant

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Before: Hon Stuart-Moore VP and Lunn J

Date of Hearing: 13 July 2006

Date of Judgment: 13 July 2006

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1. On 30 September 2004, the applicant pleaded guilty before Judge Barnes in the District Court to six offences, all of which wererelated to the fraudulent use of credit cards. The applicant received a sentence of 3½ years’ imprisonment in total, to be servedconsecutively to the 12-month term he was already serving.

2. The applicant sought leave to appeal against sentence. However, on 6 December 2004, the application was formally dismissed afterthe applicant had served a notice of abandonment.

3. Some seventeen months later, the applicant sought the leave of this court to treat his abandonment of the application for leaveto appeal as a nullity. He set out his reasons, in an affirmation dated 8 May 2006, in the following way:

“… On 6th December, 2004, I gave up the application in respect of my appeal against sentence in DCCC 922/2004 [Criminal Appeal Case No. CACC437/2004], because at the time the Legal Aid Department did not grant its approval for counsel to assist me. Being a person withhardly any legal knowledge, and as there was no counsel to provide help through analysis and explanation, I considered that the chanceof (a successful) appeal against sentence was very slim. Moreover I was facing trial on another case. Hence it was in a state ofhelplessness that I made (the decision to) cancel my application in respect of an appeal against sentence. It is my hope, therefore,that Your Honour and the Legal Aid Department could give me another chance to lodge an appeal against sentence.”

4. Plainly, from the terms of the affirmation, the applicant was well aware of the nature and effect of the document he was signingwhen he abandoned his original application. A mistake, or more often a perceived mistake, as to the prospects of success on appealdoes not make the act of abandonment a nullity. (See: HKSAR v Lai Siu-cheung [2005] 1 HKLRD 1 at 11-12).

5. There is no basis for treating the abandonment as a nullity. The application is, therefore, dismissed.

(M. Stuart-Moore)
Vice-President
(Michael Lunn)
Judge of the Court of First Instance

Ms Evena Chan, SADPP, of the Department of Justice, for the Respondent.

The Applicant, in person.