IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
criminal APPEAL NO. 198 OF 2005
(ON APPEAL FROM DCCC NO. 1146 of 2004)
Before : Hon Stuart-Moore VP, Stock JA and Beeson J
Date of Hearing : 23 March 2007
Date of Judgment : 23 March 2007
J U D G M E N T
Stuart-Moore, VP (giving the judgment of the Court):
1. The appellant (D2 at trial) was last before this court on 1 November 2006 in CACC 198/2005 when he sought to have the abandonmentof his application for leave to appeal against conviction on two charges of conspiracy to defraud treated as a nullity. The applicationwas one which was without hope and it was duly dismissed. However, as Ms Louisa Lai on the respondent’s behalf had pointed outto the appellant’s legal representatives as early as 3 August 2006, the only sensible course for the appellant to have adoptedin order to remedy the situation in which he found himself was to petition the Chief Executive under section 83P of the Criminal Procedure Ordinance, Cap. 221. This was because another defendant (D1) in the same proceedings had, on 4 May 2006, succeeded in his appeal against conviction(see: HKSAR v Ngai Wan-cheung  3 HKC 98) and the appellant was in more or less an identical position to D1 with every chance of success on appeal.
2. When we gave judgment on 1 November 2006 in CACC 198/2005 we said, amongst other things:
3. The matter has now been referred to us, pursuant to the powers conferred on the Chief Executive under section 83P of the Criminal Procedure Ordinance.
4. All that we need to say in the circumstances is that this appeal is allowed. Indeed, Mr Zervos SC on the respondent’s behalfdid not seek to argue to the contrary.
5. The two convictions for conspiracy to defraud are quashed and the appellant’s sentence, which in total amounted to 4 years and4 months’ imprisonment, is set aside. We shall not order a retrial on the 1st charge, as we did in the case of D1, as it has been pointed out by Mr Zervos that the appellant has already served 2 years and 7months of his sentence.
Mr Kevin P Zervos, SC, SADPP and Ms Ada Chan, GC, of the Department of Justice, for the Respondent.
Mr Chong Tin Chun, instructed by Messrs Peter K H Wong & Co., assigned by Director of Legal Aid, for the Appellant.