SIU HAI KA AND OTHERS v. R.

SIU HAI KA AND OTHERS v. R.

Following the Privy Council decision that s30 had been repealed by the Bill of Rights Ordinance, convictions under s30 entered after that repeal must be quashed and sentences set aside; separately, an application to treat an abandoned appeal as a nullity will be refused absent exceptional circumstances and a fundamental mistake about the act of abandonment — the restitution payments did not demonstrate remorse and therefore did not justify reinstatement, so the application was refused and any sentence alteration lies with the prerogative of mercy.

Citation
SIU HAI KA AND OTHERS v. R.
Parties
Crown/respondent: The Queen; Applicant/convict: Chu Cheuk Hong; Applicants/convicts: Siu Hai Ka and others; Applicant/convict: Jacky Wong Chai Chung; Victim/civil Claimant: Hang Lung Bank Ltd
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 December 1994
Case Number
HCMA1256/1994
Procedural Posture
Criminal / References by Governor Re Convictions After Repeal; Application for Leave to Reinstate Abandoned Appeal Against Sentence Adjudicated
Outcome
Convictions under s30 quashed and sentences set aside for persons in the References; application to treat abandonment as nullity refused and sentence left unaltered (prerogative of mercy only route)
Legal Topics
Repeal of Statutory Offence S30 Summary Offences Ordinance, Quashing Convictions, Abandonment and Reinstatement of Appeals, Mitigation by Restitution, Prerogative of Mercy
Source Language
EN
Criminal Law Constitutional Law Appeal and Procedure Repeal of Statutory Offence S30 Summary Offences Ordinance Quashing Convictions Abandonment and Reinstatement of Appeals Mitigation by Restitution Prerogative of Mercy

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Parties

The Queen

Crown/respondent

Chu Cheuk Hong

Applicant/convict

Siu Hai Ka and others

Applicants/convicts

Jacky Wong Chai Chung

Applicant/convict

Hang Lung Bank Ltd

Victim/civil Claimant

Procedural Posture

Criminal / References by Governor Re Convictions After Repeal; Application for Leave to Reinstate Abandoned Appeal Against Sentence Adjudicated

Legal Issues

  1. 1 Whether convictions under s30 of the Summary Offences Ordinance made after the Bill of Rights Ordinance came into force are valid
  2. 2 Whether an appellant's abandonment of an application for leave to appeal against sentence can be treated as a nullity and reinstated
  3. 3 Whether repayments/restitution constitute a mitigating factor for sentence and when they are relevant

Ratio Decidendi

Following the Privy Council decision that s30 had been repealed by the Bill of Rights Ordinance, convictions under s30 entered after that repeal must be quashed and sentences set aside; separately, an application to treat an abandoned appeal as a nullity will be refused absent exceptional circumstances and a fundamental mistake about the act of abandonment — the restitution payments did not demonstrate remorse and therefore did not justify reinstatement, so the application was refused and any sentence alteration lies with the prerogative of mercy.

Court Disposition

Convictions under s30 quashed and sentences set aside for persons in the References; application to treat abandonment as nullity refused and sentence left unaltered (prerogative of mercy only route)

Orders

  • Conviction recorded against each person named in the two References quashed and each sentence set aside
  • Application by Jacky Wong Chai Chung to treat abandonment of application for leave to appeal against sentence as a nullity refused