HKSAR v. Yiu Wing Shan

HCCC 52/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 52 OF 2016

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R U L I N G

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1.This is an application by Mr McGowan on behalf of the prosecution under the slip rule to amend the record of conviction and sentence of Yiu Wing‑shan, who appeared before me on 27 March 2017 for Plea and Sentence. At that time, she pleaded guilty to one count of possession of 13.2 grammes of Ice on 16 August 2015 and one count of trafficking in 26.2 grammes of Ice on 7 October 2015. She was on police bail for the first offence at the time of committing the later offence.

2.Ms Yiu was sentenced on 27 March to 14 months’ imprisonment under Count One and to 5 years and 4 months’ imprisonment under Count Two.  As the two offences had been wholly unrelated to one another, the sentence under Count Two was ordered to be served wholly consecutively to the sentence under Count One.  This made a total period of imprisonment of 6 years and 6 months.  This was an error on my part.  I had intended to imprison Ms Yiu for 5 years and 6 months under Count Two. This was because under HKSAR v Tam Yi‑chun [2014] 3 HKLRD 691, I identified the sentencing band after trial to be 7 to 11 years for 26.2 grammes of Ice and the starting point to be 8 years.  I ordered an enhancement of 3 months to take into account the fact that the offence was committed on bail making a sentence before discount of 8 years and 3 months or 99 months in total which, after 1/3 discount should have been 66 months or 5 years and 6 months.  The resulting total sentence should therefore have been 6 years and 8 months.

3.The prosecution ask that I amend the record from 5 years and 4 months to 5 years and 6 months to reflect the true intention of the Court.

Do I have the power to do so?

4.Mr McGowan says I do and Mr Kelly, on behalf of the defendant says I do not.  Mr McGowan relies primarily upon HKSAR v Tin’s Label Factory Ltd (2008) 11 HKCFAR 637.  But this is a decision in respect of the position of the CFI as an intermediate court of appeal for magisterial appeals as Mr McGowan readily accepted. Nevertheless, it was of some assistance in that it drew attention to the use of the slip rule in criminal cases in order to amend an order finally recorded to accurately reflect what the court originally intended.  There is no dispute that is the case here.  The power of the Court of Appeal to exercise the slip rule was also referred to in HKSAR v Law Chun Man [2013] 1 HKLRD 555. It enables the court to amend its judgment notwithstanding that its order has been perfected.  But, as McWalters J (as he then was) said in that case: “It is, understandably, a very limited power…”.  The question is therefore whether this court exercising the criminal jurisdiction of the High Court, has the power to amend a perfected order.  I find that I do, but only to the limited extent that I am asked to amend an order which is plainly incorrect on its face from the clear intention of the court, which for the avoidance of doubt was:

“The guideline authority for trafficking in ICE is HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For trafficking in 26.2g of Ice, the range of sentencing is for between 10‑70g of Ice which carries a sentence of between 7‑11 years. The starting point after trial would be just over 8 years but you had committed this offence whilst on police bail, which is an aggravating feature and so the starting point after trial will be enhanced by 3 months and the total before mitigation or discount will be 8 years 3 months.”

5.I take some comfort for that view from the judgment of Lord Justice Widgery in R v Saville [1981] 1 QB 12 (sitting I might add with Bridge LJ and Woolf J as he then was) when he found that the Crown Court had an inherent jurisdiction to remedy mistakes in the record and from his reliance upon Rubin J in R v Michael [1976] QB 414, where Rubin J said:

“Quite apart from the power to alter or recall an order before it has been perfected by entry, in my judgment the cases show that the court can have an inherent jurisdiction to amend or rectify the order recorded in its record to make such record accord with the order intended by the court.”

For that proposition the court referred to Lawrie v Lees (1881) 7 App Cas 19 and re Swire (1885) 30 Ch.D. 239 which made it clear that every court, regardless of whether it was a creature of statute had the inherent power to correct its record.

6.However, these were cases which were civil in nature and the authorities provided to this court have been in respect of the appellate jurisdiction of the court. None of them stand on all fours with the matter before me but I do feel that on the facts of this case, the same principles apply.  This was a mathematical error which should not have been made.

7.That being said, this is an issue of the liberty of the individual.  It is not, as was the case before Widgery LJ, an “unimportant matter”.  Albeit that it refers to just two months’ imprisonment, it is two months of someone’s life and liberty and to this defendant it is very important indeed.  The issue is therefore whether I should exercise my discretion and amend the record to show the true intention of the court, or, in the circumstances of this case, not do so.  The defendant left this court room on 27 March 2017 expecting to serve 6 years and 6 months in prison less any reduction she may earn by reason of her good behaviour.  This is her first term of imprisonment although she has previously been the subject of Rehabilitation and DATC orders as well as probation.  She is just 21 years old.  The sentences were ordered to be consecutive after taking into account the issue of totality of sentence.  They were entirely separate offending.  Be that as it may, she expected a term of imprisonment of 6 years and 6 months.  It was my error and whilst I do not resile from the sentence I intended she should serve, I do not feel in all the circumstances of this case where there is just two months’ imprisonment at stake for a woman serving her first sentence of imprisonment after a very difficult life, that it is appropriate to amend the record to reflect my true intent at that time.

Mr James H.M. McGowan, counsel‑on‑fiat, for the Department of Justice

Mr Shaun Patrick Kelly, instructed by T.C. Lau & Co,　assigned by Director of Legal Aid, for the defendant