The Attorney General v. Li Yu Kai and Others

CAAR000017/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

APPLICATION FOR REVIEW NO.17 OF 1973

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Coram: Briggs, C.J., Huggins & McMullin, JJ.

Date of Judgment: 12th December, 1973.

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DECISION

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1. This is an application for review of a sentence made by the Attorney General under section 81A of the Criminal Procedure Ordinance. The application is in respect of four respondents but we are only concerned with the first two respondents, LI Yu Kai and YU Wing Cheong. The other two respondents have not been served and did not appear before the court.

2. The first and second respondents pleaded guilty to the offence of unlawful detention of a female contrary to section 8(1)(a) of the Protection of Women and Juveniles Ordinance. The magistrate sentenced the first respondent to eight months' imprisonment and the second respondent to six months' imprisonment and ordered that those sentences should commence on the 5th September, 1973. Mr. Sceats, who appeared on behalf of the Attorney General said that those sentences were sentences not authorized by law. He drew the court's attention to section 67A(1) of the Criminal Procedure Ordinance. It reads as follows:-

"67A. (1) A sentence of imprisonment imposed by a court shall take effect from the beginning of the day on which it is imposed, unless the court otherwise directs."

The phrase "unless the court otherwise directs" is not qualified in any way but Mr. Sceats said it must be read in such a way as to prohibit a sentence being dated back to a period of time before the date of conviction.

3. In this case the date of conviction was the 5th November but the sentences were backdated to the 5th September, which was the date on which the respondents were arrested. The magistrate took into consideration the fact that the respondents had been in custody for a period of two months. At least this is what he was told. In fact, that was not the case and the respondents were on bail for part of the period of two months. Mr. Sceats pointed out that by virtue of section 67A(2) certain periods spent in custody by an accused person before he is convicted were automatically taken into consideration in the reduction of any sentence of imprisonment imposed. He suggested that the magistrate in backdating the commencement of the sentences in this case had given the respondents a double benefit, for section 67A(1) was mandatory so far as the Commissioner of Prisons was concerned.

4. We think that sub-sections (1) and (2) of section 67A are disjunctive. No matter what sentence is imposed by the magistrate under section 67A(1) section 67A(2) still applies. The magistrate cannot deprive a person of any benefit that is due to him by virtue of section 67A(2).

5. The words "unless the court otherwise directs" in section 67A(1) are unqualified and prima facie would seem to permit a magistrate to date a sentence from any day he thought appropriate. We should not seek to limit such a discretion without compelling reason. However, we think it was, for example, clearly never intended that a sentence could be back-dated beyond the date of the offence in respect of which it was imposed. In our view it would always be wrong to back-date a sentence unless the reason for so doing were to compensate for some additional period of custody which the defendant had suffered through no fault of his own. It follows that it could never be proper to back-date a sentence to the date of arrest, as was done here - at least unless it ought to have been possible in the ordinary course to bring the defendant before a court on the same day. Here the respondents, according to the papers before us, first came before a court on 5th November, 1973. The reason for the delay does not appear from the papers before us, as it should. Enquiry has revealed that there was a previous hearing on 2nd November the notes of which were wrongly omitted from the record, and that prior to that there was no hearing, the reason given being that the respondents were also detained in respect of other charges laid in another magistracy. They ought, of course, at least to have been brought before the court and informed of the charges in this case.

6. Whether it would ever be right to back-date a sentence beyond the date of conviction it is not necessary to decide in the present case. On the one hand it can be said that to do so would be to make the sentence run during a period when the defendant had not been proved guilty of the offence and that that is illogical. On the other hand, it can be said that it is convenient to be able to back-date a sentence so as to allow for a period during which the defendant was in custody because conviction on a plea of guilty was unreasonably delayed, for example because he was not arraigned pending police investigations into other possible offences. As we have said it is not necessary to decide this point in the present case and we content ourselves with saying that the power to back-date a sentence should be used with great discretion and that a reason for its exercise should always be given.

7. If the magistrate takes into consideration the period which the person appearing before him has been in custody before trial, it does not relieve the Commissioner of Prisons of his duty to reduce the sentence for a similar period under section 67A(2). Since this is so, it would seem to be wrong for a magistrate to take such period into consideration when passing sentence, since the law already provides for this.

8. The magistrate gave further reasons why he imposed sentences which, for this crime, can only be described as inadequate. It would appear that he drew incorrect inferences from the facts. This is a serious offence and, for our part, we cannot understand why the maximum penalty is only two years. Be that as it may, we think that in all the circumstances the sentences are inadequate. This application is allowed and the first respondent's sentence will be increased to a sentence of twelve months and the second respondent's sentence will be increased to a period of eight months, both sentences to run from the 5th September, 1973, and as if they had been imposed by the magistrate.

Representation:

B.A. Sceats for Applicant/Attorney General.

1st & 2nd Respondents in person.