Fu Man Kit v. Superintendent of Tai Lam Correctional Institution

HCAL 1640/2018

[2019] HKCFI 1468

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1640 OF 2018

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Before: Hon Campbell‑Moffat J in Court

Date of Hearing: 15 August 2018

Date of Judgment: 3 September 2019

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J U D G M E N T

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Introduction

1.On 30 November 2016, the applicant was arrested for the offence of trafficking in a dangerous drug, namely 13.2 grammes of methamphetamine hydrochloride.  He was committed to the High Court for trial on 29 January 2018.  The trial commenced before me on 9 July 2018. On 11 July 2018, the applicant pleaded guilty to one count of possession of those drugs.  On 27 July 2018, he was sentenced to a period of imprisonment of two years. 

2.By Originating Summons dated 15 August 2018, the applicant sought a writ of habeas corpus ad subjiciendum under section 22A of the High Court Ordinance, Cap 4.

The law

3.Under section 22A,

“(1) An application may be made to the Court of First Instance—

(a) alleging that a person named in the application is being detained without lawful justification; and

(b) requesting the issue of a writ of habeas corpus in respect of that person.

(2) An application can be made by the person alleged to be detained, or by any other person on that person’s behalf, and, in particular, can be made by or on behalf of a person who claims to be legally entitled to the custody of another person.

(3) An application can be made ex parte.

(4) As soon as practicable after receiving an application, the Court of First Instance must inquire into the allegation that the applicant is being unlawfully detained. All proceedings under this section are to be conducted in open court unless the Court, in exceptional circumstances specified by the Court, orders the proceedings, or a part of the proceedings, to be conducted in camera. All orders and decisions made in respect of those proceedings, and the reasons for those orders and decisions, are in every case to be announced in open court.

(5) On considering the application, the Court of First Instance must, if satisfied that the application has substance, do either of the following—

(a) order the issue of a writ of habeas corpus directing the person having custody of the applicant to have the applicant brought before the Court at a specified time on a specified date and to certify to the Court the grounds for the applicant’s detention;

(b) order the person having custody of the applicant to appear before the Court in order to justify the lawfulness of the applicant’s detention.

(6) The Court of First Instance may dismiss an application for a writ of habeas corpus if satisfied, on considering the application, that it has no substance.

(7) The person to whom a writ of habeas corpus is directed must, not later than the time and on the date specified in the writ—

(a) produce before the Court of First Instance the person alleged to be detained; and

(b) make a formal return to the writ.

However, the Court of First Instance may extend the time within which a writ of habeas corpus must be complied with if it is satisfied that there is a good reason to do so.

(8) If for any reason it is not possible for the person to whom a writ of habeas corpus is directed to comply with the writ, that person must nevertheless make a return to the Court of First Instance specifying the reason why it is not possible to comply with the writ.

(9) When a person is brought before the Court of First Instance in accordance with a writ of habeas corpus, the Court must immediately inquire into the circumstances surrounding the detention of the person and must order the release of that person from detention unless satisfied that the detention is lawful.

(10) If a person who has custody of a detained person appears before the Court in accordance with an order made under subsection (5)(b) but fails to satisfy the Court that the detention is lawful, the Court must order the detained person to be released from detention immediately.

(11) If a writ of habeas corpus has been issued in respect of a detained person, the person having custody of the detained person must not, until the writ is discharged or the proceedings are concluded—

(a) allow the detained person to be moved to another place of detention in Hong Kong otherwise than under the authority of the Prisons Ordinance (Cap. 234) or of any other enactment expressly providing for the detention of persons; or

(b) allow the detained person to be removed from Hong Kong.

(12) If a person who was formerly held in detention on a particular ground is released because of the issue of a writ of habeas corpus, or in accordance with an order made under subsection (10), a person may redetain that person on the same or a similar ground only if there has been a material change in the relevant circumstances.

(13) A person who—

(a) fails to comply with a writ of habeas corpus or with a requirement of this section; or

(b) contravenes subsection (12),

is guilty of contempt of the Court of First Instance.

(14) The right to obtain a writ of habeas corpus under the common law is preserved and is affected by this section only in so far as it is inconsistent with this section.

(15) For the purposes of this section—

(a) a person has custody of another person not only when the person has actual custody over the body of that other person but also when the person has power or control over that other person’s body; and

(b) in relation to an application made on behalf of a person, a reference to an applicant includes a reference to that person.”

The procedure

4.Applications by Originating Summons for a writ of habeas corpus ad subjiciendum are governed by Order 54, rules 1‑10 and should be filed and served in the prescribed format, which is Form 87.

5.Order 54 of the Rules of the High Court, allows for an application to be made ex parte to a single judge supported by affidavit[1]. Upon hearing an ex parte application, the court has the power to issue the writ forthwith  or to adjourn the application on terms[2].  In this instance, the Superintendent of Tai Lam Correctional Institution was on notice and therefore the applicant was produced and the Commissioner of Correctional Services (“the Commissioner”) was represented.

6.Under Order 54, rule 4, the court has the power in its discretion, to order the release of the person restrained.  As the parties were diametrically opposed upon the issue before the court, and as there appeared to be no case law to assist the court, the applicant was released on bail pending the court’s determination, with an appropriate warning that he may yet be required to serve a further term of imprisonment and must appear before the court on a day to be fixed.

The issue

7.The applicant maintains that he had served a total of 604 days in custody on remand prior to the date of sentencing on 27 July 2018.  His sentence of two years amounted to a sentence of 731 days.  He submits that, subject to any loss of remission, he would have been entitled to a full ¹/₃ remission on that sentence under the Prison Rules, Cap 234A (“the Rules”), which, in the normal course of events would have been 243 days. In other words, if he had served no time on remand, and all other things being equal, he would expect to serve 731 less 243 i.e. 488 days.  As it happens, the applicant was the subject of loss of remission of 14 days. If the court takes that loss of remission into account, then 731‑243+14 means that he would be expected to serve 502 days.  He submits that as he had served 604 days by the date of sentencing, he should have been subject to immediate release.

8.The Commissioner, who now stands in the shoes of the Superintendent of Tai Lam Correctional Institution, begs to differ.  He relies upon Rule 69 of the Rules, the relevant parts of which are as follows:

“69. Remission of sentence

(1) A prisoner serving a sentence of imprisonment for an actual term of more than 1 month may, on the ground of his industry and good conduct, be granted remission in accordance with the provisions of this rule:

Provided that this rule shall not permit the reduction of the actual term to less than 31 days.

(2) The remission granted under this rule shall not exceed one‑third of the total of the actual term and any period spent in custody taken into account under section 67A of the Criminal Procedure Ordinance (Cap. 221) (which relates to the computation of a sentence of imprisonment).

…

(4) This rule shall have effect subject to any disciplinary award or forfeiture of remission, and shall not apply to a prisoner serving a sentence of imprisonment for life.

…

(5) In this rule—

(a) actual term (實際刑期) means the term of a sentence of imprisonment as reduced by section 67A of the Criminal Procedure Ordinance (Cap. 221)” (Emphasis added)

9.The Commissioner relies upon the definition of “actual term”and the effect of section 67A of the Criminal Procedure Ordinance (“the CPO”), which states:

“67A. Computation of sentences of imprisonment

(1) The length of any sentence of imprisonment imposed on a person by a court shall be treated as reduced by any period during which he was in custody by reason only of having been committed to custody by an order of a court made in connection with any proceedings relating to the sentence or the offence for which it was passed….” (Emphasis added)

10.The Commissioner argues that the applicant was remanded for 604 days.  He received a sentence of 731 days and therefore his actual term is 731‑604, which amounts to 127 days.  The actual term of 127 days is more than 31 days and therefore he is entitled to remission.  He submits remission is calculated upon the actual term plus the time on remand, which is 731 × ¹/₃ which amounts to 243 days.  This was reduced by 14 days loss of remission which makes 229 days.

11.The applicant submits that a sentence of 731 days less 229 for remission would mean he serves a sentence of 502 days, which he has already served.  It is at this point that there is a divergence of opinion.  The Commissioner submits that Rule 69(1) provides “that this rule shall not permit the reduction of the actual term to less than 31 days.”  He submits that there is a statutory baseline set at 31 days, “that does not allow the deduction of remission against the actual term to go below.  In other words, under this rule, any prisoner who is entitled to remission still has to serve a statutory minimum of 31 days”[3].  That being the case, the Commissioner submits that the earliest date of discharge of the applicant was 26 August 2018 i.e. 31 days after the date upon which he was sentenced.  In support of this argument, he further submits that the applicant had, in some way, benefitted from this calculation as time served of 604 plus the 31 days which he must serve after sentence meant that he had served 635 days rather than the 731 days to which he was sentenced.  With respect, that is not a benefit as he was and is entitled to remission upon the whole of the sentence i.e. 731 days.

Conclusion

12.The effect of the reasoning of the Commissioner would appear to be that, regardless of the amount of time spent on remand, a prisoner would be required to spend a further 31 days in prison.  With respect to the Commissioner he has read the effect of section 67A of the CPO upon Rule 69(2) too restrictively.  The plain and simple construction of which, is that the period spent in custody on remand is considered to be time served.  The effect of the 31‑day rule was intended to address short prison sentences of 31 days or less for which prisoners would not be entitled to remission and arguably (but this has not been addressed before me) sentences which, once a ¹/₃ remission was taken into account would have reduced the number of days to be served to less than 31.

13.With respect, it could never have been the intention of the legislature, having legislated to allow ¹/₃ remission for sentences of imprisonment over 31 days, to require a convicted prisoner to serve a further 31 days after sentence which would have the effect of depriving him of the remission which the legislation allows. 

14.This application is allowed.  The applicant is released forthwith.  If I am incorrect as to the above, I refer the parties to the transcript of the proceedings for sentencing in HCCC 37/2018 at pages 4R‑5F, under which it is clear on the face of the record that the court intended, as part of its calculation on sentence, the immediate release of the applicant.

15.Costs of this application be to the applicant to be taxed if not agreed.

Mr Shaun Kelly (on 15 August 2018) and Ms Priscilla Lau (on 3 September 2019), instructed by Gallant, assigned by the Director of Legal Aid, for the applicant

Mr Stanley Ng, instructed by the Department of Justice, for the respondent