The Queen v Lau Kam

Court:Court of Appeal (Hong Kong)
Judgement Number:CACC428/1989
Judgment Date:11 May 1990
CACC000428/1989 THE QUEEN v. LAU KAM

CACC000428/1989

IN THE COURT OF APPEAL Criminal Appeal
No. 428 of 1989

BETWEEN

THE QUEEN

AND

LAU KAM

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Coram: Hon. Yang, C.J., Silke, V.P. and Macdougall, J.A.

Date of Hearing: 11 May 1990

Date of Judgment: 11 May 1990

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JUDGMENT

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Macdougall, J.A.:

1. The applicant, who was convicted on 7 August last year after trial before Judge Caird in the District Court of having had in his possession 36.07 grams of a mixture containing 2.19 grams of salts of esters of morphine for the purpose of unlawful trafficking, sought leave to appeal out of time against his sentence of 3 years imprisonment.

2. In his affirmation filed in support of this application the applicant stated that he had earlier applied for leave to appeal against his conviction and that on 24 November he was notified that he had been refused legal aid. Subsequently he was advised by a firm of solicitors, whose name he did not disclose, that he should appeal out of time against sentence.

3. When we pointed out to him that it was clearly stated in the form which he completed in applying for leave to appeal against conviction that it had been fully explained to him that if he appealed against both conviction and sentence at the same time one would not have any adverse affect on the other, he replied that, although his signature appeared immediately below that advice, he had not read it clearly.

4. Being satisfied that there was no merit in the application we refused it. We then considered whether we had power under section 83W of the Criminal Procedure Ordinance to direct that the time, or part of it, during . which the applicant had been in custody pending the hearing. of the application should not be reckoned as part of the term of 3 years to which he had been sentenced, and, if so, whether we should exercise that power.

5. The relevant part of section 83W is contained in subsection(1) which reads as follows:

"83W. (1) The time during which an appellant is in custody pending the determination of his appeal shall, subject to any direction which the Court of Appeal may give to the contrary, be reckoned as part of the term of any sentence to which he is for the time being subject."

6. Although it was presumed by a differently constituted division of this court in Li Mau-lam v. The...

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