1992, No. 486




Coram: Silke, V.-P., Macdougall, V.-P. and Mortimer, J.A.

Date of hearing: 5 May 1994

Date of judgment: 5 May 1994

Date of handing down reasons: 7 June 1994




Silke, V.-P.:

1. This is the judgment of the court.

2. Wan Siu Kei was, on 5th November 1992, convicted after trial for the offence possession of forged bank notes. He was sentenced toa period of 5 years’ imprisonment.

3. A co-defendant, Sze Yung Sang was also convicted – but on his own plea – of two offences of possession of forged banknotes for whichhe received respectively 4 years’ imprisonment and 3 years’ imprisonment concurrent.

4. Wan Siu Kei sought leave to appeal against both his conviction and his sentence. Sze Yung Sang sought leave to appeal against hissentence.

5. Wan Siu Kei abandoned his application in respect of conviction on 6th July 1993.

6. On 23rd March 1993, Sze Yung Sang’s application for leave was granted and the sentence of 4 years’ imprisonment was reduced to oneof 3 years’ imprisonment. Between that date and the date upon which Wan Siu Kei’s application in respect of sentence was heard, adivision of this court in R. v. Mohammad Faisal, Criminal Appeal No. 540 of 1990 (unreported) took the same line as did this court in R. v. Sze Yung Sang, Criminal Appeal No. 486 of 1992 (unreported). The issue in both those appeals was the application of article 12(1) of the Bill ofRights. As the headnote in Sze Yung Sang said:

“Defendant entitled to benefit of lowering of maximum penalty between date of offence and date of sentence.”

However, the court in R. v. Wan Siu Kei CA486/1992 declined to follow either of those decisions. Wan Siu Kei’s application was dismissed. This has led Wan Siu Kei to feela sense of grievance. In order to ventilate that grievance he made a further application to this court in the form of an applicationfor leave to appeal against conviction out of time: in reality an application to treat the abandonment of 6th July 1993 as a nullityon the basis that his mind did not go with his act.

7. We have read his homemade submissions contained in a letter dated 22nd April 1994 and we have considered that which he had said tous in person at the hearing. It may well be that he was advised that his chances in respect of sentence were better if he abandonedhis concurrent application in respect of conviction and, given the decision in R. v. Sze Yung Sang and in the light of the evidence called at his trial, that was undoubtedly good advice. He however feels that the Crown, having raisedthe arguments they did at the hearing of his application in respect of sentence, let him down for they sought to persuade the court,and successfully did so, that neither R. v. Sze Yung Sang nor R. v. Mohammad Faisal should be followed. While he may have a justifiable sense of grievance we are not persuaded that his abandonment of the applicationin respect of conviction should now be treated as a nullity. In so doing we have considered generally the summing up with which wecan find no fault.

8. In those circumstances, we have no course other than to refuse the application.

(William Silke)
Vice President
(Neil Macdougall)
Vice President
(J.B. Mortimer)
Justice of Appeal


Applicant – in person

AE Schapel, Esq. for Crown/Respondent